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A  DIGEST 

OF  ALL    THE  P.EPOBTED    CASES, 

BOTH    IX    LAW    AND  EQUITY, 

DETERMINED    IN    THE 

COURTS  OF  NORTH  CAROLINA 


l'KOM    THE 


EARLIEST  PERIOD  TO  THE  PRESENT  YEAR. 


TOGETHER    WITH 


A    1AJJI   i:  OF  THE  NAMES   <>F  THE   CASES. 


P  It  E  P  A  It  E  D    B  Y 

"WILiLiIAM    H.    BATTLiE, 

A   Judge   of  the  Supreme  Court. 


IN  THREE  VOLUMES. 

THIS  FIRM    AND    SECOND  VOLUMES  CONTAINING  THE  LAW,   AND  THE 
THIRD  VOLUME  THE  EQUITY  CASES. 


RALEIGH : 

NICHOLS,   GORMAN  Jt  NEATHERY,  BOOK  AND  JOB  PRINTERS. 

18  6  6. 


Entered   according   to   Act   of  Congress,  in   the  year  18156,   by 

WILLIAM    H.    BATTLE, 

In  the  Clerk's  Office  of  the  District  Court  of  the  United  States,  for  the 

District    of  North   Carolina. 


PREFACE. 


This  Digest  has  been  prepared  at  the  request,  and 
mainly  for  the  use,  of  the  Bench  and  Bar  of  North- 
Carolina  ;  though  it  is  hoped  that  it  may  not  be  with- 
out its  value  to  the  members  of  the  Profession  in  other 
States.  In  the  plan  and  execution  of  the  work,  the 
Author  has  had  more  regard  to  practical  utility  than 
to  logical  accuracy.  Hence,  in  arranging  the  divisions 
and  subdivisions  of  the  various  titles  embraced  in  it,  he 
has  endeavored  to  place  each  abstract,  01  point  decided, 
under  the  head  where  a  seeker  would  be  most  likely 
to  look  for  it.  There  are,  however,  very  many  points 
which  may  rightly  be  put  under  either  of  two  or  more 
different  heads,  and  as  to  the  proper  distribution  of  them 
opinions  may  very  well  differ.  In  adopting  the  usual 
plan  to  obviate  this  difficult)'  by  making  references  from 
one  subject  to  another,  the  Author  hopes  that,  by  the 
number,  variety  and  minuteness  of  his  references,  he  has 
made  a  successful  search  a  matter  of  easy  attainment. 

The  work  is  divided  into  two  parts,  of  which  the  first, 
in  two  volumes,  contains  abstracts  of  the  law,  and  the 
second,  in  one  volume,  of  the  equity  cases.  In  this  ar- 
rangement, the  present  Digest  differs  from  those  of  Hawks 
and  Iredell,  while,  in  embracing  all  the  reported  deci- 
sions made  by  the  courts  of  this  State  from  the  earliest 
period  to  the  present  year,  it  differs  from  that  of  Jones. 
In  this  work,  the  law  is  separated  from  the  equity 
reports,  and  the  reader  must  bear  in  mind  that  there 
are  many  questions  which  may  arise  and  be  decided  either 
in  a  court  of  law,  or  a  court  of  equity,  such,  for  instance, 


IV  PREFACE. 

as  questions  concerning  devises,  legacies,  divorces,  &c, 
and,  hence,  he  may  have  to  look  under  the  appropriate 
heads  in  both  parts,  before  he  can  find  what  he  may  wish 
to  see. 

In  submitting  to  the  public  this  product  of  his  labors, 
the  Author  must  bespeak  for  it,  an  indulgent  criticism. 
He  has  tried  hard  and  taken  much  pains  to  make  it  both 
accurate  and  complete  ;  but  prepared  as  it  was  in  a  great 
measure,  amid*  the  anxieties,  distractions  and  distresses 
of  a  great  civil  war,  he  fears  that  other  persons  may  dis- 
cover errors  which  have  escaped  his  own  attention.    There 
are  some  typographical  mistakes  which  he  much  regrets. 
The  more  important  of  them  will  be  found  in  the  list,  of 
errata  to  which   the   reader  is   referred.     But.  notwith- 
standing all  its  defects,  the  Author  trusts  that  the  work 
will  prove  to  be  of  no  little  utility,  as  a  book  of  refer- 
ence, to  those  who  are  engaged  either  in  the  practice  of 
the  law  at  the  bar,  or  in  its  administration  on  the  bench. 
Before  closing  this  brief  preface,  the  Author  will  avail 
himself  of  the  opportunity  of  making  to  the  Hon.  David 
L.  Swain  and  Thomas  P.  Devereux,  Esq.,  his  grateful  ac- 
knowledgments for  their  great  kindness  and  assistance  to 
him  in  the  earlier  part  of  his  professional  life.     To  the 
former  he  was  indebted  for  his  appointment  on  the  com- 
mission for  revising  the  Statutes  in  1833,  and  to  the  lat- 
ter he  owed  his  connection  with  the  office  of  Reporter  of 
the   decisions   of  the   Supreme   Court  in   1834.      These 
timely  aids,  rendered  in  both  instances  without  solicita- 
tion, gave  a  favorable  turn  to  his  previous  unsuccessful 
career  at  the  bar,  one  result  of  which  has  been  the  pre- 
sent work.     He  trusts  that  it  will  not  be  deemed  inap- 
propriate for  him  to  connect  with  it  this  public  expres- 
sion of  his  gratitude  to  those  who  have  thus,  in  a  measure, 
been  instrumental  in  its  accomplishment. 


TITLES  OF  REPORTS^ 

DIGESTED  IN  THE  LAW  VOLUMES, 

With  the  abbreviations  by  which  they  are  designated; 


TITLES  OF  THE  REPORTS. 


WHEN  PUBLISHED.       ABBREVIATIONS. . 


Martin's  Eeports  in  two  volumes,,  1797,  1  Mar,  2  Mar. 

Haywood's  Reports,  1st  volume,  1799,  1  Hay. 

Taylor's  Eeports,  1802, .  Tay.  or  Tayl. 

Conference  Reports,  180(3,  Conf.  Rep. 

Haywood's  Reports,  2d  volume,  1806,  2  Hay. 

Carolina  Law  Repository,  1814,  1  Car.  L.  R. 

Carolina  Law  Repository,  1816,,  2  Car.  L.  R. 

North-Carolina  Term  Reports,  1818,  N.  C.  Term  R. 

Murphey's  Reports,  1st  volume,  1822,'.  1  Murph. 

Murphey's  Reports,  2d  volume, .  1826,'  2  Miviph. 

Murphey's  Reports,  3d  volume,  1821,  3  Murph. 

Hawrks'  Reports,  1st  volume,  1823;  1  Hawks. 

Hawks'  Reports,  2d  volume,  1824,  2  Hawks. 

Hawks'  Reports,  3d  volume,  1826,  3  Hawks. . 

Hawks'  Reports,  4th  volume,  1828,  4  Hawks. 

Devereux's  Reports,  1st  volume,.  1829,  1  Dev. 

Devereux's  Reports,  2d  volume,  1831,  2.  DeVi 

Devereux's  Reports,  3d  volume,  1834,  3  Dev. 

Devereux's  Eeports,  4th  volume,  1836,  4  Dev. 

Devereux  &  Battle's  Reports,  1st  vol.,   1837,  1  Dev.  &  Bat. 

Devereux  &  Battle's  Reports,  2d  vol.,.  1838,  2.  Dev.  &  Bat. 

Devereux  &  Battle's  Reports,  3d  volv    1840,:  3  Dev.  &  Bat. 

Devereux  &  Battle's  Reports,  4th  vol.,   1840,  4  Dev.  &  Bat. 

Iredell's  Reports,  1st  volume,  1841,,  1  Ired. 

Iredell's  Reports,  2d  volume,  1842,  2  Ired. 

Iredell's  Reports,  3d  volume,  1843,  3  Ired. 

Iredell's  Reports^  4th  volume,  1844,  4  Ired. 

Iredell's  Eeports,  5th  volume,.  1845,  5  Ired. 

Iredell's  Eeports,  6th  volume,,  1846,  6  Ired. 

Iredell's  Eeports,  7th  volume;.  1847,  7  Ired. 

Iredell's  Eeports,.  8th  volume,  1848,  8  Ired. 

Ired.dl's  Eeports,.  9th-  volume,  1849,  9  Ired. 

Iredell's  Reports,  10th  volume,  1850,  10  Ired. 

Iredell's  Eeports,  11th  volume,  1851,  11  Ired. 

Iredell's  Eeports,  12th  volume,  1851,  12  Ired.. 


VI 


TITLES  TO  REPORTS,  ETC. 


TITLES  OF  THE  REPORTS. 

tfedell's  Reports,  13th  volume, 
Busbee's  Reports, 
Jones'  Reports,  1st  volume, 
Jones'  Reports,  2d  volume, 
Jones'  Reports,  3d  volume, 
Jones'  Reports,  4th  volume, 
Jones'  Reports,  5th  volume, 
Jones'  Reports,  6th  volume, 
Jones'  Reports,  7th  volume, 
Jones'  Reports,  8th  volume, 
Winston's  Reports,  1st  volume, 
Winston's  Reports,  2d  volume, 

Of  the  above  repoi'ts  second  editions  have  been  published,  as 
follows :  1st  Haywood,  in  1832.  Martin  and  2d  Haywood,  (bound 
together)  in  1843.  Taylor  and  Conference  Reports,  (bound  tdS 
gether)  in  1844.  The  2  volumes  of  Carolina  Law  Repository 
and  North-Carolina  Term  Reports  (bound  together)in  1844.  1st 
Devereux  and  Battle,  in  1857.  The  2d  Devereux  and  Battle,  in 
I860.  The  pages  of  the  new  editions,  when  they  vary  from 
those  of  the  old,  are  added  in  brackets. 

The  abbreviations,  other  than  those  for  the  Reports,  used  in 
this  volume,  are  S.  C,  same  case;  S.  P.,  same  point. 


rumsHEE 

>.       ABBREVUTIOXSv 

1852, 

13  Ired. 

1853, 

Busb. 

1854, 

1  Jones. 

1855, 

2  Jones. 

1856-, 

3  Jones. 

1857, 

4  Jones. 

1858, 

f>  Jones, 

1859, 

6  Jones. 

1861, 

7  Jones. 

1863, 

8  Jones. 

186*6, 

1  Winst. 

1866, 

2  Winst. 

INDEX.-VOL  I. 


ABATEMENT. 

1.  By  the  death  of  parties,  1. 

2.  How  and  when  suit  to  be  revived  after  abatement  by  the  death  of  parties,  2. 

3.  Plea  in  abatement,  for  what  causes  to  be  pleaded,  3. 

4.  Plea  in  abatement  when  and  how  to  be  pleaded,  4. 

5.  Plea  in  abatement  to  an  indictment,  5. 

ACCESSORY,  5. 

ACCOMPLICE,  6. 

ACCORD  AND  SATISFACTION,  6. 

ACCOUNT,  7. 

ACT  OF  ASSEMBLY,  8. 

ACTION  ON  THE  CASE. 

1.  For  conspiracy,  11. 

2.  For  deceit,  12. 

3.  For  malicious  prosecution,  17. 

4.  For  slander,  22. 

5.  When  the  action  will  or  will  not  lie  in  other  cases,  30. 

6.  When  the  action  will  or  will  not  abate,  35. 

ADJUTANT  GENERAL,  35. 

ADMIXISTRATt  >KS.     (See  Executors  and  Administrators,)  36. 

ADMIRALTY  3G. 

ADULTERY.     (See  Fornication  and  Adultery,1)  36. 

ADVANCEMENT,  37. 

AFFRAY,  37. 

AGENT  AND  PRINCIPAL. 

1.  H<mv  an  agent  is  to  be  appointed,  and  how  his  power  may  be  revoked,  37. 

2.  Acts  which  create  the  relation  of  agent  and  principal,  38. 

3.  Agents  acting  for  the  public,  38. 

4.  Factots,  38. 

5.  Of  the  rights  of  an  agent  as  against  third  persons,  39. 

6.  Of  the  liability  of  agents  to  third  persons,  40. 

7.  Of  the  liability  and  rights  of  an  agent  as  respects  his  principal,  41. 

8.  Of  the  liability  of  aprincipal  forthe  act  of  his  agent,  or  by  notice  to  him,  43. 

ALIEN. 

1.  Who  is  an  alien,  45. 

2    The  effect  of  war  with  the  country  of  an  alien,  46. 

3,  When  an  alien  can  or  cannot  sue  in  this  State,  46. 

4.  As  to  an  alien  holding  lands,  46. 

ALIMONY.     (See  Divorce  and  Alimony,)  47. 

ALLUVION,  48. 

AMENDMENT. 

1.  Of  the  writ,  48. 

2.  Of  the  declaration  and  other  pleadings,  50. 

3.  Of  the  verdict,  judgment  and  execution,  51. 

4.  Of  the  record,  51. 

5.  In  the  supreme  court,  57. 

6.  When  costs  to  be  paid  on  amendments,  58. 


vnr  INDEX.— VOL.  r. 

APPEAL. 

1.  From  a  justice's-judgment,.  59t 

2.  When  allowed  from  the  county  to  She  superior  court,  60} 

3.  When  the  transcript  must  be  filed,  55. 

4    Effect  of  an  appeal  from  the  county  to  the  superior  court.  66. 

5.  Of  the  appeal  bond  and  the  sureties  thereto,  69. 

6    From  the  superior  to  the  supreme  court,  when  allowed  and  its  effect,   7f 

APPRENTICE,  79. 
ARBITRATION  AND  AWARD. 

1.  Construction  of  submissions  and  awards,  81. 

2.  Exceptions  to  awards,  how  made,  84. 

3..  When  the  reference  may  be  set  aside,  84. 

4.  When  an  award  is  to  be  sustainetLor  set  aside,  84. 

5.  Remedy  on  awards,  88.. 

ARREST,  88. 

ARSON,  90. 

ASSAULT  AND  BATTERY,  91. 

ASSIGNMENT,  93. 

ASSUMPSIT. 

1.  When  the  action  will  or  will  not  lie,  94.. 

2.  Of  the-consideration,  102 

3;  Plead'tigs,  evidence  and  judgment,  106. 
4.  Defence  against  the  action,  107. 

ATTACHMENT. 

1.  When  an  attachment  shall  issue,  107. 

2.  What  may  or  may  not  be  attached,  108. 

3.  Of  the  return  .of  the  attachment  and  proceedings  thereon,  110. 

4.  Of  an  interpleader,  112. 

6.  Of  a  garnishee  and  proceedings  against  him)  B13. 

6.  Of  the  replevy  bond,  115. 

7.  Attachments  against1  steamboats  and  other  vessels  under  the  act  of  1854, 115. 

8.  Attachment  on  account  of  an  injury  to  person  or  property,  116. 

9.  Of  judgment  and  execution  in  attachment,  and  their  effects,  116.. 

ATT< )  1  { N  EYS  AT  LAW,   119. 

AUCTION  AND  AUCTIONEERS,  119; 

AVERAGE,.  120. 

AWARD.     (See  Arbitration  and  Award,)   120. 

BAIL 

1.  Proceedings  against  bail,  121. 

2.  Bail  bond,  123. 

3.  Of  the  liability  of  bail  and'whataets  will  discharge  them,  125.. 

4.  Of  remedies  for  bail,  126 

5.  Plea  of  nul  ticl  record,  127- 

6.  Plea  of  surrender  or  death  of  the  principal,  127. 

7.  Of  bail  on  a  warrant  issued  by  a  justice  iu  a  civil  case,  129. 

8.  Of  bail  in  criminal  cases,  129. 

BAILMENT  129. 
BANKRUPT,  132. 
BASTARDY.. 

1.  Proceedings  in  bastardy  cases.  134: 

2.  Of  legitimating  bastard  children,  139. 

3.  Concealing  the  birth  of  a  bastard  child,  139. 

BATTERY.     (See  Assault  and  Battery,)  139. 
BAWDY  HOUSE,  139. 
BENEFIT  OF  CLERGY,  140. 
BEQUEST,  140. 


INDEX.— VOL.  L  IX 

BILLSOF  EXCHANGE  AXD  PROMISSORY  NOTES. 

1.  Whatisabillornote,  140. 

2.  Of  the  consideration  of  a  note  or  endorsement.  141. 

3.  What  notes  are  negotiable  under  the  statute,  141. 

4.  Of  their  endorsement  and  transfer,  142. 
5    Of  a  demand,  14f. 

6.  Days  of  grace,  147. 

7.  Notice  of  non-acceptance  and  non-payment,  147. 

8.  Remedy  on  a  bill  or  note.     Declaration,  pleading  and  evidence,  loi. 

9.  Liability  of  parties  and  how  discharged,  153. 

10.  Effect  of  a  bill   or  note,  when  taken   for  goods  sold,  or  'for  a  precedent 

debt,  158. 

11.  Damages,  159. 

BONDS. 

1.  Of  their  execution,  including  delivery,  160 

2.  Of  the  construction  of  bonds  and  the  condition,  162. 

3.  Of  official  and  public  bonds,  168. 

4.  Of  the  consideration  of  bonds,  173. 

5.  When  bonds  may  or  may  not  be  avoided,  175. 

6.  Of  the  assignment  of  bonds,   177. 

7.  Proceedings  in  suits  upon  bonds,  177. 
8    Payment  or  satisfaction  of  bonds,  178. 

BOOK  DEBT,  182. 
BOUNDARY. 

1.  Whose  provice  it  is  to  ascertain  boundary,  183- 

2.  Naiual  objects  called  for,  184. 

3.  Lines  of  another  tract  called  for,  189. 

4.  Lines  actually  run  and  marked,  192. 

5.  Course  and  distance  called  for,  1U5. 

6.  Parol-  evidence  in  boundary  cases,  198 

BRIDGES,  200. 

BROKER,  200. 

BURGLARY,  201. 

BURNING  WOODS.     (See  Woods.) 

CARRIER. 

1.  Who  are  considered  common  carriers,  203. 

2.  Of  the  duties  and  liabilities  of  carriers,  203. 

CARTWAY,  20fi. 

CASE.     (See  action  on  the  case,  )  207. 

CATTLE  AND  OTHER  LIVE  STOCK,  207. 

CERTIORARI. 

1.  When  the  writ  is  allowable,  208. 

2.  Of  proceedings  in  certiorari  and  the  effect  of  the  writ,  2R. 

3.  Of  the  returnofthe  writ,  218. 

4.  Of  the  security  for  costs,  219. 

5.  Certiorari  in  the  supreme  court,  220. 

CHALLENGE  TO  FIGHT,  222. 

CHAMPERTY,  222. 

CHOSE  IN  ACTION,  222. 

CLERKS  AND  CLERKS  AND  MASTERS. 

1.  Of  their  election  or  appointment,  223. 

2.  What  interest  they  have  in  their  offices,  224. 

3.  Of  the  responsibility  of  them  and  their  sureties,  224. 

4.  Deeds  executed  by  clerks  and  masters,  228. 

COLOR  OF  TITLE,  220. 


X  INDEX— VOL.  I. 

COMMISSIONERS  FOR  PERFORMING  A  PUBLIC  DUTY,  232". 

COMMON  CARRIER.     (See  Carrier,)  233. 

COMMON  SCHOOLS,  233. 

COMPROMISE,  235. 

CONCEALING  THE  BIRTH  OF  A  BASTARD  CHILD,  235. 

CONDITION,  235. 

CONFESSIONS,  236. 

CONFISCATION,  236. 

CONSCRIPTION,  237. 

CONSIDERATION,  210. 

CONSPIRACY,  240. 

CONSTABLES. 

1.  Of  their  election  or  appointment,  241. 

2.  Of  the  power  and  authority  of  a  constable,  243. 

3.  Of  their  bonds,  213. 

4.  Of  the  liabilitv  of  them  and  their  sureties,  244. 

CONSTITUTION. 

1.  Who  can  declare  statutes  to  be  unconstitutional,  251. 

2.  Statutes  which  have  been  declared  constitutional,  251. 

3.  Statutes  which  have  been  declared  unoonstitutional,  £54*. 

4.  Construction  of  various  clauses  of  the  constitution,  255. 

CONTEMPT,  259. 
CONTRACT. 

1.  Construction  of  contracts,  and  wlipn  an  action  will  lie,  260.. 

2.  Of  the  sale  of  personal  chattels,  273. 

3.  Contracts  as  affected  by  the  statute  of  frauds,  280. 
4    Void  and  voidable  contracts,  283. 

CORONER,  285. 
CORPORATIONS. 

1,]  Of  corporations  generally,.  285. 
2'  Of  particular  corporations,  289. 

COSTS. 

1.  What  costs  to  be  taxed,  292. 

2.  In  what  court  judgment  to  be  given  for  them,  29  I 

3.  In  civil  proceedings — when  plaintiff  pays  costs,  294. 

4.  In  civil  proceedings — when  defendant  pays  costs,  296. 

5.  When  neither  party  recovers  costs,  'I'M . 

6.  In  cases  arising  on  the  probate  ot  wills,  who  pays  costs,  298i 

7.  Security  for  costs.  299. 

8.  How  costs  may  be  collected,  299. 

9.  Costs  in  the  Supreme  Court,  300. 
10.  Costs  in  criminal  prosecutions,  300. 

COUNTERFEITING,  302. 

COUNTY,  302. 

COVENANT,  303. 

CREEKS.     (See  Rivers  and  Creeks,)  309. 

CURRENCY,  309. 

CURTESY,  310. 

CUSTOM,  310. 

DAMAGES,  311. 

1.  When  the  law  gives  damages,  311: 

2.  By  what  rule  damages  to  be  assessed,  311. 

3.  What  will  increase  or  mitigate  damages,  316. 
4    Whether  damages  be  penal  or  liquidated,  318. 


INDEX.— VOL.  I.  XI 

DEBT. 

1.  When  the  action  will  lie,  319. 

2    Of  the  verdict  in  the  action  of  debt,  33,0. 

DECEIT,  32a 
DEED. 

1.  Of  the  execution  and  date  oi  a  deed,  321. 

2.  Of  the  parties  to  a  deed  and  Jie  custody  thi  ceo 

3.  Of  the  consideration,  325 

4.  Of  the  presumption  of  a  deed,  826. 

5.  Of  the  operation  of  a  deed  and  when  it  may  be.avoided  or  not 

6.  Of  the  construction  of  deeds,  and  their  various  parts,  328. 

7.  01'  deeds  in  trust.    .  ,7 

DEMAND,  339. 
DEMURRAGE,  340, 
DESCENT. 

1.  Whether  one  takes  by  descent  M  heir,  or  by  purchase,  410. 

2.  Where  the  claim  is  through  an  alien.  341. 

8.  Rules  of  descent  before  the  act  of  1808,   341. 

4.  Rules  of  descent  under  and  since  the  act  of  1808,  343. 

DETINUE. 

1.  When  the  action  will  or  will  not  lie,  345. 

2.  Parties  to  the  action.  348. 

3.  When  a  demand  is  necessary  and  when  not,  348. 

4.  Of  the  pleadings,  evidence,  judgment  and  execution,  348. 

DEVISE. 

1.  Construction  as  to  who  can  take.  351. 

-.  Construction  as  to  what  i!  fi  eludes,  352. 

3.   <  onstruction  _,s  to  what  interest  it  passes,  357. 

DISORDERLY  HOUSE;  367. 
DISTILLING,  367. 
DISTRIBUTION,  ;7>07. 
DIVORCE  AND  ALIMONY. 

J.  When  both  or  either  will  be  granted,  370. 

2    Proceedings  in  cases  of  divorce  and  alimony,  373. 

BOGS,  375. 
DOMICIL,  375 

DONATIO  CAUSA  MORTIS,  376. 
POWER     (Sec  Widow,)  376. 
DRAINING  LOW  LANDS,  376. 
DRUNKENNESS,  378. 
EASEMENT,  378. 
gJECTMENT. 

1.  For  what  the  action  will  lie,  378. 

2.  Commencement  of  the  action,  379. 

3.  Of  the  declaration,  379. 

4.  Of  the  defendant's  bond,  381. 

5.  Entry,  when  necessary  and  its  effect,  382. 

6.  Of  the  defendant's  possession,  382 

7.  Survey, 383. 

8    Of  the  title  necessary  to  support  the  action,  383. 
9.  Ot  the  defence,  and  herein  of  the  consent  rule,  393, 

10.  Judgment  and  writ  of  possession    398. 

11.  Trespass  for  mesne  profits,  400.  ' 
1;2.  When  the  action  abates,  402. 


XII  INDEX.— VOL.  I. 

ELECTION. 

1.  Election  between  inconsistent  benefits,  402. 

2.  Election  of  public  officers,  403. 

EMBEZZLING,  -403. 
EMBLEMENTS,  403. 
ENLISTMENT,  403. 
ENTRY,  404. 
ESCHEAT,  405. 
ESTATES  TAIL,  405. 
ESTOPPEL. 

1.  By  matter  of  record,  406. 

2.  By  deed,  408. 

3.  By  matter  other  than  by  record  or  deed,  413. 

EVIDENCE. 

1.  Witnesses,  their  competency  or  incompetency,  413. 

2.  Subscribing  witness,  proof  of  handwriting,  429. 

3.  Witnesses,  their  examination,  434. 

4.  Competency  of  a  witness  restored  by  a  release,  437. 
5. -Impeaching  the  credibility  of  a  witness,  438. 

6.  Depositions,  443. 

7.  Hearsay,  and  common  reputation,  448. 

8.  In  what  cases  a  witness  may  express  an  opinion,  450. 

9.  Proof  of  character,  452. 

10.  Testimony  inadmissible  for  irrelevancy,  453. 
]  1.  Privileged  and  confidential  communications,  455. 

12.  Parol  evidence,  when  admissible  and  when  not,  455. 

13.  Admissions,  declarations  and  acts  of  patties,  privies  and  others,  462. 

14.  Public  Documents,  478. 

15.  Statutes,  479. 

16.  Records  of  courts,  proof  and  effect  of  them, '479. 

17-  Proceedings  in  other  suits,  when  and  how  far  evidence,  48S 

18.  Copies  of  deeds  and  other  instruments,  when  admitted  and  how  proved,  4S6. 

19.  Proof  of  official  bonds,  494 

-'20.  Professional  books,  or  books  of  science,  494. 

21.  Books  of  original-entries,  accounts,  receipts,  orders,  checks,  waybills,  &c,  495. 

22.  Laws  and  legal  proceedings  in  other  States  and  countries,  496. 
-23-  Evidence  in  cases  relating  to  wills  and  testaments,  499. 

24.  Evidence  in  cases  of  malicious  prosecution  and  slander,  502. 
55.  Evidence  as  to  identity  of  names,  505. 
26.  Evidence  in  criminal  proceedings  rand  indictments,  505. 
27-  Dying  declarations,  521. 

28.  Who  to  decide  upon  the  competency  of  evidence,  52]. 

29.  Of  the  effect  to  be  given  to  testimony  by  the  jury,  522. 

30.  Presumptions,  526. 

31.  Witnesses,  their  liabilities,  531. 

32.  Witnesses,  their  compensation  and  remedy  therefor,  532. 

EXCHANGE,  533. 
EXECUTION. 

1.  What  maybe  levied  on  and  sold  under  execution,  533. 

2.  When  and  to  what  county  an  execution  may  issue,  and  of  its  return,  540. 

3.  Levy,  sale  and  application  of  the  money  raised,  54]. 

4.  Forthcoming  bonds  taken  on  a  levy,  548. 

5.  Right  to  the  surplus  after  the  satisfaction  of  an  execution,  548. 

6.  Lien  and  priority  of  executions,  549. 

7.  Of  void  and  irregular  executions, and  proceedings  tosetaside  executions,  555. 
8    Purchaser  at  an  execution  sale,  558. 

'9.  Of  the  capiat  ad  satisfaciendum,  567. 
ilO.  Of  the  discharge  of  the  defendant  in  the  execution,  568. 


INDEX.— VOL.  I.  XIII 

^EXECUTORS  AND  ADMINISTRATORS. 

1.  Letters  testamentary  and  letters  of  administration,  569. 

2.  What  interest  vests  in' them  upon  the  death  of  the  testator  or  intestate,  674. 

3.  Executors  dc'son  tort,:bli. 

4.  What  interest  vests  in  an  administrator  de  bonis  non,  577. 

6.  Of  co-executors  and  co-administrators,  and  their  liability  to  or  for  each  other, 
577. 

6.  Of  sales  by  executors  and  administrators,  and  herein  of  purchases  by  them 

at  their  own  sales,  578. 

7.  Of  suits  by  executors  and  administrators,  581. 
8    Of  their  liability  for  funeral  expenses,. 584. 

9.  Of  their  liability  to  creditors,  and  herein  of  suits  against  them,  and  their  de- 
fence, 584. 

10.  Of  their  liability  to  legatees  and  next  of  kin,  597. 

11.  Of  refunding  bonds  taken  from  legatees,  and  next  of  kin,  601. 

12.  Of  the  effect  of  making  a  debtor  an  executor  or  administrator,  602. 

13.  Remedy  for  the  sureties  of  executors  and  administrators,  who  may  be  in  dan- 

ger of  loss,  602. 

14.  Of  the  claim  of  executors  and  administrators  to,  or  liability  for,  costs,  602. 
15    Of  the  compensation  to  which  executors  and  administrators  are  entitled  604. 

EX  POST  FACTO  LAW,  605. 

EXTORTION,  605. 

FALSE  TOKEN,  605. 

FACTORS,  605. 

FEES.     (See  Salaries  and  Fees,)  606. 

FELONY,  606. 

FENCES,  606. 

FERRY  AND  TOLL  BRIDGE,  607. 

FISHERY,  610. 

FIXTURES,  611. 

FORCIBLE  ENTRY  AND  DETAINER,  611. 

FORCIBLE  TRESPASS,  615. 

FOREIGN  LAWS,  618. 

FORGERY,  618. 

FORNICATION  AND  ADULTERY,  619. 

FRAUD. 

.1.  Conveyances,  agreements,  &c,  fraudulent  as  to  creditors,  620. 
:2.  Conveyances,  fraudulent  as  to  subsequent  purchasers,  634. 

3.  Remedy  against  fraudulent  conveyances,  637. 

4.  Fraud  in  the  removal  of 'debtors,  638. 

5.  Fraud  in  the  executionof  a  deed  or  other  instrument,  640. 

6.  Fraud  at  auction  sales,  640. 

FREE  PERSOXS  OF  COLOR,  642. 

FREIGHT,  643. 

FUNERAL  EXPENSES,  643. 

GAMING. 

1.  Horse  racing,  643. 

2.  Gaming  contracts  other  than  horse  racing,  645. 

3.  What  gaming  is  made  indictable,   645. 

•GENERAL  ASSEMBLY,  646. 
GENERAL  RULES,  647. 
GIFTS. 

1.  Gifts  of  slaves  prior  to.  or  independent  of,  the  act  of  1806,  649. 

2  Gifts  of  slaves  since  the  act  of  1806,  651. 

3  Gifts  of  chattel  property  other  than  glares,  653. 


XIV  INDEX.— VOL.  I-II. 

GRANT. 

1.  What  may  or  may  not  be  granted,  and  of  the  effect  of  a  grant,   Co4. 

2.  Of  the  effect  of  an  exception  in  a  grant,   (J5I3. 

3.  Of  the  presumption  of  a  grant,   606. 

4.  How  and  when  grants  may  be  avoided,  659. 

GUARANTY,  663. 
GUARDIAN  AND  WARD. 

1.  Of  the  appointment  of  guardians,  667. 

2.  Of  the  powers  and  duties  of  guardians,   668. 

3.  Of  t lie  liabilities  of  guardians  and  their  sureties,   669. 

4.  Of  the  liability  of  justices  for  taking  insufficient  security  in  (he  appoint- 

ment of  guardians,  672. 


INDEX -VOL.  II. 

HABEAS  CORPUS,  673. 
HEIRS,  074. 
HIGHWAY,  680. 
HOMICIDE,  685. 
HOTCHPOT,  695. 
HUSBAND  AND  WIFE. 

1.  Of  marriage,  696. 

2.  Husband's  interest  in  his  wife's  person.  699. 

3.  Husband's  interest  in  his  wife's  estate  during  coverture,  and  after  death 

as  survivor,   699. 

4.  Conveyance  of  real  estate  to  husband  and  wife,  703. 

5.  Conveyances  by  husband  and  wife,   703 

6.  Of  marriage  settlements  and  agreements,  7n9. 

7.  Of  actions  by  and  against  husband  and  wife,   710. 

8.  How  far  the  hushand  is  bound  by  the  acts  and   admissions  of  his  wife 

before  and  after  marriage,   6'1. 

9.  Of  the  liability  of  a  wife  for  her  own  acts  during  coverture,   712. 

IDIOTS  AND  LUNATICS,  713. 
[NCENDIARY  PUBLICATIONS,  714. 
INDECENCY,  714. 
INDIAN  LANDS,  715. 
INDICTMENT. 

1.  In  what  cases  an  indictment  will  lie,  717. 
2    Form  and  matters  relating  thereto,   729. 

3.  Of  the  trial,  verdict  and  judgment,  748. 

4.  How  a  presentment  is  to  be  made  or  a  bill  found,   761, 

6.  Effect  of  a  nolle  prosequi,  761. 

<i.   Plea  of  former  acquittal  or  conviction,  762. 

7.  Of  quashing  indictments,  704. 

8.  Variance  between  the  allegations  and  proofs,   765 

9.  Limitation  of  time  within  which  an  indictment  will  lie,  767, 

INFANTS  AND  INFANCY,  768. 
IN  FORMA  PAUPERIS,  772. 
INJUNCTION  BOND,  772. 
INNS  AND  INKEEPERS,  772. 
I NSOLVENT  I)  E  BTO  US. 

1.  Proceedings  under  the  insolvent  debtors' acts  prior  to  the  act  of  1822, 77* 

2.  Proceedings  under  the  acts  of  lS22and  subsequent  acts,  774. 


INDEX.— VOL.  II.  XV 

INSOLVENT  DEBTORS—  Continued. 

3.  Of  the  property  to  be  laid  off  for  an  insolvent  debtor  under  the  acta  of 

1844  and  1848    783. 

4.  Of  the  creditor's  liability  for  the  maintenance  of  his  debtor  in  jail,  784. 
fi.   Of  the  priority  of  the  claim  of  the  Uni'ed  States  and  the  State,  785. 

INSPECTORS  OF  ELECTION,  785. 

INSURANCE,  785. 

INTEREST,  787. 

JOINT  OBLIGATIONS,  789. 

JOINT  TENANTS.  790. 

JUDGE'S  CHARGE,  791. 

JUDGMENT. 

1.  Of  the  effect  of  a  judgment,   791, 

2.  How  a  judgment  is  proved,  and  of  a  scire  facias  to  revive  one,  794. 

3.  Of  the  assignment  of  judgments,  794. 

4.  Of  the  satisfaction  of  judgments,  795. 

5.  Of  judgments  against  executors,  administrators  and  heirs,  797. 

6.  Of  irregular,  void  and  erroneous  judgments,  797. 

JURISDICTION. 

1.  Jurisdiction  of  Justices  of  the  Peace,  802. 

2.  Jurisdiction  of  the  County  and  Superior  Courts,  802. 

3.  Jurisdiction  of  the  court  of  equity  in  selling  infant's  property,  808. 
4  Jurisdiction  of  the  Supreme  Court,  809. 

JURY. 

1.  Who  are  competent,  and  who  are  exempt,  as  jurors,  810. 

2.  Liability  of  jurors  for  non-attendance,  611. 

3.  Of  challenges  to  the  jury,  811. 

4?  Of  the  conduct  and  province  of  the  jury  in  the  trial  of  causes,  817. 

JUSTICES  OF  THE  PEACE. 

1.  Of  Justices'  warrants  in  civil  cases,  818. 

2.  Of  Justices'  warrants  in  criminal  proceedings,  819. 

3.  Of  the  granting  of  new  trials  by  Justices,  822. 

4.  Of  their  jurisdiction,  judgment  and  execution,  822. 

5.  Of  Justices'  execution  levied  on  land  and  returned  to  court,  836. 

6.  Of  the  responsibility  of  Justices,  836. 

LANDLORD  AND  TENANT,  837. 

LARCENY.  Ml'. 

LEASE.     (See  Landlord  and  Tenant,)  845. 

LEGACY. 

1.  Construction,  as  to  what  passes  and  who  takes,  846. 

2.  Whether  vested,  contingent  or  executory,  8"i7. 

3    Of  the  assent  of  the  executor,  and  its  effect,  865. 

4.  When  a  legacy  will  be  presumed  to  have  been  paid  or  satisfied,  868. 

5.  Legacy  "alter  debts  paid,"  what  fund  liable  for  them,  868. 

6.  For  the  separate  use  of  a  married  woman,  869. 

7.  Lapsed,  iroid  and  adeemed  legacies,  869. 

LEX  LOCI,  869. 
LIBEL.  871. 
LICENSE,  872. 
LIMITATIONS,  STATUTE  OF. 

1 .  When  the  statute  begins  to  run,  873- 

2.  The  statute  will  or  will  not  bar  in  personal  actions,  877. 

3.  Limitation  of  actions  on  official  bonds,  890. 

4.  Effect  of  the  statute  upon  the  title  to  slaves,  890. 

5.  Limitation  as  to  suits  against  executors,  administrators,  heirs  and  devisees,  891. 

6.  Limitations  as  to  real  estate,  895. 


XVI  INDEX.— VOL.  II. 

^LITERARY  BOARD,  899. 

LUNATICS,  899. 

MAD  DOGS,  900. 

MAIMING,  900. 

.MAINTENANCE  AND  CHAMPERTY,  901. 

MALICIOUS  MISCHIEF,  901. 

MALICIOUS  PROSECUTION,  902. 

MANDAMUS  AND  QUO  WARRANTO,  902. 

MANSLAUGHTER.    (See  .Homicide,)  909. 

.MARRIAGE,  909. 

MASTER  AND  SERVANT,  909. 

MERGER,  910. 

MILITIA,  910. 

MILLS. 

1.  Action  at  common  law  for  damages  caused  by  a  mill,  911. 

2.  Proceedings  by  petition  under  the  act  of  18U9,  912. 

3.  Proceedings  to  condemn  land  for  the  erection  of  a  mill,  916. 

4.  Liability  of  mill  owners  for  bridges  attached  to  their  dams,  916. 

5.  Indictment  against  mill  owners  for  keeping  false  toll  dishes,  917. 

MISMARKING  CATTLE,  HOGS,  &G,  917- 

MONEY,  917. 

MORTGAGE,  918. 

MURDER.     (See  Homicide,)  92L 

NAVIGATION,  921. 

NEGLIGENCE,  921. 

NEW  TRIAL. 

1.  When  and  upon  what  terms  granted  in  civil  cases,  921. 

2.  When  refused  in  civil  cases,   923. 

8.  When  granted  orrefused  in  criminal  cases,  927. 
4.  When  ordered  or  refused  by  the  supreme  court,  929. 

NOLLE  PROSEQUI  AND  NONSUIT,  934. 
NUISANCE,  934 
OFFICERS  AND  OFFICES,  '935. 
OVERSEERS,  937. 
-OVERSEERS  OF  THE  ROAD,  938. 
PARDON,  938. 
PARTIES,  939. 
PARTITION,  940. 
PARTNERSHIP. 

1.  Whit. constitutes  a   partnership   and  its  effect  upou  the   parties   an£ 

others,  942. 

2.  f*f  the  dissolution  of  a  partnership,  947. 

3.  Of  the  sale  and  purchase  of  partnership. effects,  918. 

PATROL,  949. 

POWER,     (See  Pledge,)  949. 

.PAYMENT,  949. 

PENAL  STATUTES,  953. 

PENSION,  955. 

PERJURY,  956. 

PILOTS,  959. 


INDEX.— VOL  II"..  IVLB 

PLEADING. 

1.  Of  the  joinder  of  parties,  959. 

2.  Of  the  joinder  of  actions,  960. 

3.  Of  the  writ  and  declaration,  961, 

4.  Of  pleas,  replications  and  demurrer,  965. 

5.  Of  repleader,  97.3." 

6.  Of  a  variance  between  the  allegations  and  proofs,  9744. 

7.  Of  demurring  of  the  parol,  974. 

8.  What  defects  may  be  cured  by  pleading  oyer,  974, 

9.  Of  scire  facias,  and  the  pleadings  thereon,  975. 

10.  Of  the  verdict  and  judgment,  97.6v 

11.  Of  writs  of  error,   978, 

PLEDGE,  981. 
POOR,  982. 
POSSESSION,  982". 
POSTMASTER,  987:. 
POWERS,  987. 
PRACTICE. 

1,  Continuance  of  a  cause,  988i 

2.  Removal  of  causes,  989. 
%  Scire  facias,  99?  „ 

4.  Of  the  trial  and  its  incidents,  993. 

5.  Of  default  and  enquiry.  996. 

61  Appearance  and  proceeding  against  one  of  several  defendants,  9971 

7.  Payment  of  money  into  court,  998. 

8.  Consolidating  gaits,  999. 

9  References,  motions,  orders,  rales  and  notices,  999. 

10.  Nonsuit  and  nolle  prosequi,   1001. 

11.  Writs  of  false- judgment,  of  error,  and  of  supersedeas,  1002,. 

12.  Dismissing  a  suit.  1003. 

13.  Discontinuance,  death  of  parties,  1004, 

14.  Costs,  1004. 

15.  Judge's  charge,  1006. 

16.  Practice  in  the  supreme  court,  1017. 

17.  Equity  practice  in  suits  of  an  equitable  nature  brought   in  courts  of;' 

law.   1021. 

PRESUMPTIONS,  1028. 

PRINCIPAL,  1028. 

PRISON  BOUNDS,  1029. 

PRIVIES,  1029. 

PROCESS,  1030. 

PBOCESSIONING.  1031. 

PROFANE  SWEARING,  1032: 

PROHIBITION,  1032. 

PURCHASER.     (See  Vendor  and  Purchaser,)  1032'.. 

QUO  WARRANTO,  1033. 

RAILROAD  COMPANY,  1083.. 

RAPE,  1033. 

RECEIPT,  1034. 

RECEIVING  STOLEN  GOODS,  1034. 

RECOGNIZANCE,  1034. 

RECORD,  1037. 

RECORDARI,  1040. 


XVIII  INDEX.— VOL.  II. 

REGISTRATION,  1042. 

RELEASE,  1047. 

RELIGIOUS  CONGREGATION,  1048. 

RELIGIOUS  SOCIETIES,  1048. 

REMAINDER,  1049. 

REMITTER,  1052. 

REPLEVIN,  1052. 

RESCUE,  1054. 

RETAILER  OE  SPIRITUOUS  LIQUOR,  1054. 

RETAIN  EL.  1056. 

REWARD,  1056. 

RIOT,  1057. 

RIVERS  AND  CREEKS,  1057. 

ROADS.     (See  Highway,)  1058. 

ROBBERY,  1059. 

ROUT,  1059. 

RULES,  1059. 

SABBATH  BREAKING,  1059. 

SALARIES  AND  LEES,  1060. 

SALVAGE,  1060. 

SATISFACTION,  1060. 

sen;::  facias,  loeo. 

SCHOOLMASTER,  1060. 
SEDUCTION,  1061. 
SETOFF,  10(31. 
SHERIFFS. 

1.  Ofthe  election  of  sheriffs,  1065. 

2.  Authority  of  sheriffs,  an  I  remedy  for  them,   1065. 

3.  Duty  of  sheriffs  iu  relation  to  process  issued  to  them,  its  execution  and 

return,  IOCS. 

4.  Of  the  liability  of  sheriffs  and  their  sureties,   1073. 
5-   Liability  of  sheriffs  for  their  deputies,  1082. 

6.  Liability  of  sheriff  as  bail,  1083. 

7.  Liability  of  sheriffs  for  escapes,  lOS^. 

8.  When  the   defendant  in  the  process  is  sheriff,  and  of   successive  sher- 

iffs. 1087. 

0.  Stiles  by  sheriffs,   1088. 

10.  Amendment  of  sheriffs' returns,  1091. 

11.  Compensation  to  sheriffs,   1092. 

SLANDER  1092. 
SLAVES. 

1.  Of  suits  for  freedom,  1093. 

2.  Of  the  emancipation  of  slaves,  1093. 

3.  Sales  and  gifts  of  slaves,  1097. 

4.  Increase  of  slaves,  llol. 

5.  Of  a  umsler's  liability  for  the  contracts  or  acts  of  his  slave,  1101. 

6.  Of  offences  against  the  persons  of  slaves,  1101. 

7.  Of  offences  committed  by  slaves.  1103. 

8.  Of  the  harboring  of  slaves,  1106. 

8.   Of  offences  in  the  treatment  of,  or  dealing  with  slaves,  1108. 

SOLDI  EL,  1107. 
STATUTE,  1107. 


INDEX.— VOL.  II.  XIX 

SUNDAY,  1107. 

SURETY  AND  PRINCIPAL  1107. 

SURRENDER,  1113. 

TAXES.  1113. 

TENANTS  IN  COMMON.  1117. 

TENANTS  AT  WILL  AND  FROM  YEAR  TO  YEAR,  1121. 

TENDER  AND  REFUSAL,  1123. 

TOWNS,  1125. 

TREATY,  1129. 

TRESPASS. 

1.  To  persons  and  personal  property,  when  it  will  lie,   1181. 

2.  Trespass  quare  claumm  fregit,  1 1 84-. 

3.  Merger  of  trespass  in  felony,  1139. 

4.  Tender  of  amends  before  suit  brought,  1140. 

TRIAL.  1140. 
TROVER 

1.  V  ben  (lie  action  will  or  will  not  lie,  1140. 

2.  What  is  a  conversion,   '  145. 

3.  Effect  of  the  verdict  and  judgment,  1147. 

4.  Abatement,  of  the  action,   114". 

TRUSTEE  AND  TRUSTS,  1147. 
TURNPIKE  COMPANY,  1149. 
UNLAW  IT  L  ASSEMBLY,  1149. 
UNWHOLESOME  PROVISIONS,  1149. 
USURY. 

1.  What  transactions  are  usurious.   1149. 

2.  Of  the  action  for  the  penalty.   115*. 

VENDOR  AND  PURCHASER,  1158. 

VESSE1  S    1 159 

VOTING  AT  AN  ELECTION,  11(30. 

WAGER,  11  ill. 

WAGER  OF  LAW,  1161. 

WARDENS  OF  THE  POOR,  1161. 

WARRANTY. 

1.  \\  su-ranty  of  real  estate,  1161. 

2.  Warranty  of  personal  property,   llfi.5. 

3.  Of  ihe  action  upon  a  warranty,  and  the  evidence  to  support  it,   116$. 
4    Of  the  damages  to  be  recovered,  1170. 

WASTE,  1172. 
WAY,   1174. 
WHARFAGE,  1174. 
WIDOW. 

1.  Of  her  dower,   117.5. 

2.  Proceedings  to  obtain  dower,   1179. 

3.  Her  interest  in  the  personal  estate  of  her  husband,  1180. 

4.  Dissent  from  her  husband's  will,   1181. 

WILLS. 

1.  Who  may  make  a  will,   1182. 

2.  What  shall  be  deemed  a  will,  1182. 

3.  Publication  and  republication  of  wills,   1184. 

4.  Attested  wills,  1185. 

5.  Holograph  wills,   1189. 
0.  Nuncupative  wills,  1190, 


XX  INDEX— VOL.  LL. 

WILLS—  Continued. 

7.  Revocation  of  wills,  119L 

8.  The  probate  and  reprobate  of  wills,  119S*. 

WITNESS,  1204- 
WOODS,  1205. 
WRECKS,  1205. 


DIGEST. 


ABATEMENT. 


1    Bj  the  death  of  parties. 
!I.  How  aDil  whea  suit  to  be  revived  fit- 
ter  abatement  by  the  death  of 
parties. 


III.  Plea  in  abatement,  for  what  causes 

to  be  pli 

IV.  Plea  in  abatement,  when  and  how  10 

be  pleaded. 
V.  Plea  iu  abatement  to  an  indictment. 


I.     BY    THE    HEATH    OF    TAKTIES. 

1.  Ejectment  abates  by  the  death  of  the  defendant,  and  cannot 
!»•  revived  by  sci  fa.  against  Ids  heirs.  Anonymous  1  Hay.  50Q 
(576).     (Altered.     See  Rev   Code  ch.  1,  sec  5.) 

2.  A  qui  tarn  action  abates  by  the  defendants  death.   EL    nt  \ 
Fish,  1  Hay.  502,  (578)  3.  I'..  Smith  v.  Walker,  2  Car.  L.  R.  24*5, 

3.  An  action  on  the  case  against  a  sheriff  for  misconduct  in 

nil  not  survive  against  his  executors.     Jlh<><lcs  v.   Greg- 
Hay.  351,  (539.) 

4.  An  action  of  debt  founded  mi  a  pi  nal  statute,  as  for  har- 
boring rmiaways,  will  abate  by  the  death  of  the  plaintiff,  and 
cannot  in-  re^  ived.     Estis  v.  /.'  nnox.     Conf.  Rep.  72,  (204.) 

5.  An  action  for  seducing  away  a  slave  does  not  abate  by  the 
defendant's  death.     McAlister  v.  >\.//A  ,-.  Conf.  Rep.  95,  (226.)  _ 

6.  An  action  of  waste,  brought  against  a  tenant  for  life,  will 
abate  by  the  death  of  the  defendant,  and  cannot  be  renewed 
against  his  representatives.     Brown  v.  Blick,  3  Murph.  511. 

7.  An  action  for  seduction  of  bis  daughter,  brought  byafather, 
abates  by  his  death,  and  cannot  be  renewed  by  his  executors. 
Mi  i  lure  v.  MiUer,  4  Hawks  133. 

8.  When  an  action  is  brought  mi  an  official  bond,  for  the  ben- 
efit of  a  person  injured,  in  the  name  of  the  Stat'/,  or  of  an  officer 
of  the  State,  to  whom  the  bond  is  made  payable,  it  is  regarded 
as  the  action  of  tin.'  relator:  and  on  his  death  it  is  abated,  as 
other  actions  abate  by  the  death  of  the  plaintiff,  unless  revived 
in  the  manner  prescribed  by  law.    McLavg  di  i  v.  Neitt,  3  Ire.  294. 

9.  An  action  of  trover  does  not,   under  the  Rev.  S(;it.  eh.  2. 


■l  ABATEMENT.  -J.-II. 

Sec.  10.  abate  by  the  death  of  tin-  party  doing  the  wrong.      //  eare 
v.  Burge,  10  Ired.  169.     (See  Rev.  Code  ch.  1,  sec.  1.) 

10.  An  action  of  ejectment  does  not  abate  by  tin.1  death  of  the 
lessor  of  tin-  plaintiff!  Thomas  v.  Kelly,  13  [red.  43,  S,  1'.,  Wilson 
v.  Hall,  13  I  ml.,  489. 

11.  When,  upon  the  death  of  tin  lessor,  some  of  the  heirs 
came  in  ami  are  made  parties,  and  others  refuse  to  do  so,  a  non- 
suit cannot  he  entered  for  that  cause.     Ibid. 

12.  A  sci.fg.  to  recover  a,  penalty,  imposed  on  a  sheriff  for  not 
returning  process,  abates  by  lr's  death  and  cannot  be  revived. 
against  his  representatives.     Mason  v.  Balleiv,  13  [red.,  483. 

13.  Where  an  action  was  brought  against  the  administrator 
of  a  clerk  on  his  official  bond,  for  the  penalty  of  £200,  for  issu- 
ihga  writ  without  requiring  security  to  the  prosecution  bond. 
it  was  held  that  the  right  to  sue  for  the  penalty  abated  by  the 
death  of  the  clerk.     File  v.  Lander,  7  Jones,  247. 

See  (Detinue — Parties  to  the  action,  1,)  (Ejectment — Judg- 
ment and  writ  of  possession,  11-12,)  (Husjjand  and  wife — Of 
the  liability  of  a  wife  for  her  acts  during  coverture,  L,)  (Mills — 
Proceedings  by  petition  under  the  act  of  1809,  3-4) 

,11.  HOW  AND  WHEN  TO  EE  REVIVED  AFTER  ABATEMENT  BY  HEATH  OF  PARTIES.. 

1.  The  executors  of  a  deceased  plaintiff,  must  apply  within 
two  terms  after  his  death,  to  lie  made  parties  to  carry  on  the 
suit,  or  it  will  be  abated  and  the  defendant  discharged.  But  if 
afterwards  the  executors  apply  by  a  set.  fa.,  or  a  liotice  to  the 
defendants,  aid  ;  r  •  mad.'  parties  without  opposition  by  eider  of 
Eke  court,  it  will  be  too  late  for  the  defendant  to  have  the  suit 
abated.  Anonymous,  2  Hay,  (ifi,  (233).  Begukt  generalis,  Tav. 
134,(82.) 

2.  An  order,  entered  of  record,  lor  a  sm.  fa.  to  issue  to 

tic  representatives  of  a  deceased  defendant  parties  to  a  suit,  witti 
prevent  an  abatement  of  the  suit,  as  tiff  shall  net  suffer 

for  the  neglect  of  the  cleric.     Hamilton  v.  Jones,  1  Murph.  4-11. 

:i.  When  a  e    end    i    in.  ejeetmein  die$  between  two  terms  oi 
the  superior  court,  and  his  death  was  suggested  at  the  firsl 
afterwards,  a  service  on  the  guardian  of  the  infant  heirs  on   the 
first  dav  of  lb'  ensuing  term  is  sufficient  under  the  act  of  1799. 
Bay  v.  Simpson,  2  Car.,   !..  R.  2!!'.  (227).      (See  Rev.  Cod 

2.  sec.    5.) 

!.  When  the  defi  ndant  dies  ami  ■.,  g,  {.fa.  against  his  adminis- 
trator regularly  isxm  s  from  term  to  term,  although  net  ac 

'  •   1  until  after  the  lapse  of  live  years,  the  suit  will  be  re1 

Clements  v.  Hussey,  2  Car.  !..  R.  011,(414.) 

5.  Upon  the  death  of  the  trespass  quart 

freqit,  the  sui1  must   be  revived   by  '     'tor  and  not  by 'his 

\ 


ABATEMENT.— II-III.  3 

6.  Executors  or  administrators  of  a  plaintiff  must,  in  urn,  nil. 
apply  to  revive  the  suit  within  two  terms  after  his  death,  com- 
puting from  tlic  day  of  his  death,  ami  not  from  the  time  the 
suggestion  was  entered  on  the  record.  McLdMghlin  v.  Xcili., 
3  Ired.  294. 

7.  The  application  to  revive  a  suit,  in  the  name  of  tint  admin- 
istrator of  a  deceased  plaintiff,  must  be  made  within  two  terms 
at'ter  his  dtiath,  am'  affidavits  will  he  received  to  show  when  he 
died.     Lea  v  Gauze,  4  Ired.  9. 

8.  Upon  the  death  of  the  defendant  in  ejectment,  a  sci.  fa. 
and  a  copy  of  the  declaration  must  be  s<  rved  on  the  heirs,  in  the 
manner  prescribed  by  the  act,  within  two  terms  offer  tin-  death  of 
tJte  defendant,  or  the  suit  will  stand  abated.  It  is*  not  sufficient 
only  to  apply  for  such  process  within  the  two  terms.  Love  v. 
Scott,  4  ired'.   79.     (See  Rev.  Code.  ch.  1,    sec,  5.) 

9.  It  is;i;ot  necessary,  in  any  ease,  for  the  representative  of  a 
deceased' plaintiff  to  issue  a.  sci.  fa.  to  make  himself  a  party,  hut 
lie  may  be  made  so  upon  application  to  the  court,  and  the  law 
keeps  the  defendant  in  court  two  Aerms- for  that  purpose.  Bor- 
den v.  Thorpe,  13  Ired.  298. 

10.  I.n  ejectment,  where  the  suit  abated  by  the  death  of  the 
tenant  in  possession,  notice  to  "the  heirs"  of  such  deceased 
tenant,  without  naming  them,  is  sufficient  to  revive  the  sxiit 
against  them,  under  the  7th  and  9th  sections  of  tin'  Rev.  Stat. 
eh.  2:  and  upon  failure  of  theheirsto  appear  and  make  defence, 
the  plaintiff's  lessor  is  entitled  to  judgment  by  default  against 
the  casual  ejector.  Johnson  v.  Maddera,  Buebi  52.  (See  Rev. 
Code,  ch.  1.  s  c  5  and  7.) 

11.  The  heirs  at  law  of  a  deceased  defendant  cannot,  under 
the  Revised  (.'ode,  ch.  1.  sec.  T>.  make  themselves  parties  to  an 
action  of  ejectment,  against  the  will  ofthe  plaintiff's  lessor,  sous 
to  prevent  the  suit  fi  om  abating.    Watkiitst    Eashy,  tJones286. 

S  e  (Trespass-  -Of  tres-pass  quare  claiisum /regit,  l(i.) 

II!.    PLEA   .IS    ABATEMENT,    FOR    WHAT    I    LCSES    TO    I.E    PLEADED. 


1.   Since  the  acirof  1789  (le  v.      ode  eh.  31,   see..'-:"!)  710  plea 
fcement  will   lie  for  not  suing  a  co-obligor  who  is  alive. 
"  wn,  1  Hay. 

.    abatem   irl    that  I  ben     were  0  :  ei    executors  not 
is  bad.     It  should  liavi    stat<   M  bat  other  ex- 
iled  as  such,  and  took  upon,  themselves  the 
d  mting     :      will.     Burrow  v  Sellers,!   Hay.  501, 


—  v.  Kenon,  1  Hay.  216.  (:'. 

2    A  plea  in  abatement    that  then    wen  othei    <  lecutors  nol 

:  '    is  bad      It  should  have  stated  that  other  ex- 

■.'  "i"'   ., 

burthen   of     ,< 

(577.) 

3.  11  ent,  that  ] ling  the  suit  the 

plaintirl    ivho  wai  a    i  ■••     i    bad  married,  and  that  her  husband 
is  not  made  a  party.     G  rardv  Fia       '■    "!  irph.  161. 

4.  ft  is  a  good  I  mt  that  the  writ  in 


4  ABATEMENT  -  ill.  IV. 

an  action  for  a  p  tialty  is  in  tl  e   iam    of  "J.  T,  Governor."  a.-.. 
and  the  dei  laration  is  thai  the  relati  i  nv  -  as  well  for  liin 
for  "J.  T.,  Governor,"  &c.     Governor  v  Horfon,  1  Murph.  212. 

5.  Defects  in  warrants  must   Repleaded  in   abatement    win 
they  come  n]i  tn  tin    county  couri  on  appeals;  they  can 
taken  advantage  of  after  verdict,  upon   amotion  to  am    . 
judgment.     McBae  v  Starr,  1  Mnrp.  252. 

ii.  Where  a  guardian  bond  wai  uadi  payable  to  three  jui 
byname  "  and  the  rest  of  the  justices'"  of  the  county  court,  it 
was  held  in  a  suit,  on  the  bond,  in  the  name  of  the  three  justices, 
thai  the  noii  joinder  of  the  other  justices  as  plaintiffs  would  be 
fatal  on  demurrer,  on  motion  to  arrest,  or  upon  a  writ  of  error, 
if  the  defect  appeared  on  the  face  of  tic-  p  oc<  dings;  but  as  it 
did  not  in  this  case,  tic  defect  cotdd  only  bo  tab  n  advantage 
of  by  plea  in  abatement,  or  as  a  ground  of  nonsuil  on  tin;  trial 
Upon  the  plea  of  non  est  factum.     ( 'lancy  v  Dickey,  2  Hawks  4'e7. 

7.  Matter  which  abates  an  original  suit,  abates  one  that  is 
collateral  to  it;  as  an  interplea,  between  a  plaintiff  and  a  gar- 
nishee, is  abated  by  the  death  of  the  defendant  in  the  attachment, 
or  a  sci./a.  under  the  Act  of  1806,  by  the  death  of  the  defendant 
in  the  original  action.  Wintz  v  Webb,  3  Dev.  27.  (See  Rev. 
>Code  ch.  50,  sec.  7.) 

8.  In  detinue,  if.  after  action  brought  and  issue  joined,  the 
plaintiff  gets  possession  of  the  thing  sued  for,  that  fact  may  be 
pleaded,  since  the  last  continuance,  in  abatement  of  the  suit.  bu1 
it  seems  that  it  would  not  be  a  good  plea  in  bar.  Morgan  v 
Cone,  1  Dev.  &  Bat.  234. 

9.  A  plea  in  abatement,  to  the  disability  of  the  lessor  of  the 
plaintiff  in  ejectment,  is  not  a  good  plea.  Rouclie  v  Williamson, 
;;  Ired.  141. 

10.  An  assignment  of  a  note,  without  consideration,  passes 
the  legal  title,  but  if  ii  be  made  to  evade  the  law  regulating 
the  juiisdicticn  $  act  ns,  as  to  '  '  •  i  ■<  nte,  che  ct.jcfccn  it 
available  at  all,  must  be  made  by  a  plea  in  abatement.  McLi  ■>> 
v  McDugaLd,  8  Jones  383.      (See    Rev.  Code,  ch.  31,  sec.  ;>7.) 

.See  (Husband  and  wife — <  (factions  by  and  against  husband  ami 
wife,  1-8,)  (Jurisdiction — Of  the  countyand  superior  courts,  14- 
15—18—25—27—30, ;  (Justices  of  the  peace — Of  their  jurisdiction, 
judgment  and  execution  100-101-1 1 2, )  (Militia  1,)  (PL  sading— ( If 
pleas,  replications  and  demurrers,  11-13-30-31-34-36-37-48  49 
.50-51-66-67-<W.)  ( Practice — Nonsuitand  nolle  prosequi,  5.)  (Pro- 
cess, 8-9,)  (Usury — Of  the  action  for  the  penalty,  3,)  (Indict- 
ment— Of  the  trial,  verdict  and  judgment,  21.) 

IV.    PLEA    IX    ABATEMENT,    WHEN    AND    HOW   TO    BE    PLEADED. 

I.  A  plea  in  abatement  should  be  filed  it  the  first  term  and  is 


ACCESSORY.  5 

waived  by  a  plea  in  chief     DaheU  v.  Stanly,  Mar.  46,  (40,)  S.  P 
v.  Xenon,  1  Hay.  216,(247.) 

2.  A  plea  in  abatement,  that  the  defendanl  was  not  served 
with  a  copy  of  the  declaration,  must  be  filed  within  the  first 
three  days  of  the  term,  under  the  Act  of  1777.  MeFarland  v 
Harrington,  Conf.  Rep.,  407,  (  1-7.").) 

(As  to  the- rules  of  pleadings  now  in  three  see  Rev.  Code,  cl 
31,  sec.  57.) 

V.    PLEA    IN    ABATEMENT    TO    AM    INDICTMENT. 

1.  A  plea  in  abatement,  thai  the  indii  tment  does  not  describe 
the  defendant  by  the  addition  of  his  occupation,  cannot  be  sus- 
tain 1.  But  if  it  could,  a  plea  would  In-  defective,  which  com- 
mences "and  tin'  said  W.  !;.  comes,"  Ar.  because  it  admits  the 

:   lit  tn  lie  the  person  indicted.     Stat    v.  Newmans,  '2  Car., 
L  11.  74,  (171.) 

2.  It  is  a  good  plea  in  abatement,  to  an  indictment  in  the  su- 
perior i  Mint.  That  a  prior  lull  was  pending  against  him  in  the 
county  court,  for  the  same  alleged  offence.  State  v.  Yarbrough, 
1    Haw;.,.  78. 

See  (Indictment — Of  (he  trial,  verdict  and  judgment,  21.) 


ACCESSORY. 

1.  The  jxeeamtsg  of  the  word  "c md,"  as  applied' to  the 

rase  of  principal  and  accessory  is.  where  a  person,  having  a 
control  over  another,  as  a  master  over  his  servant,  orders  a  thine,' 
to  he  dene.     State  v.  Mann,  1  Hay.  1  (7.) 

2.  An  accessory  is  not  liable  to  be  tried,  as  for  a  misdemeanor 
under  the  Act  of  171*7,  when  the  principal  is  in  the  Mate,  and 
amenable  to  the  law.  State  v.  Graft]  1  ilurph,  270.  (See  Rev. 
Code,  ch.  34,  see.  53  and  54.) 

3.  A  receiver  of  stolen  goods  under  the  value  of  twelve  pence, 
who  is  tried  and  found  guilty,  where  tin  thief  has  never  been 
prosecuted,  hut  is  runnntg-at  torg\  amenstble  to  process,  is  not 
liable  to  be  punished,  and  no  sentence  can  he  pronounced  against 
him.  lie  is  not  liable  to  indictrnenl  under  art  of  17H7,  nor 
at  the  cemmon  law;  for  as  to  the  fatter,  there  an  no  acces- 
sories ni  petit  larceny  ;  and  as  to  the  forme]',  both  for  that  rea- 
son, and  also  because,  if  there  could  he  an  accessory,  the  princi- 
pal is  amenable  to  the  process  of  the  law.  Statev.  Goode,  1 
Ilawks.  463.     (See  Rev.  Code,  ch.  34,  sec.  54.) 

4.  The  reeord  <il' the  eoiivietien  nf  a  principal  felon  is .idinis- 


6         ACCOMPLICE— AOTJOKB  AND  SATISFACTION. 

sfble- on  the  trial  of  "the  -accessory,  and  is  conclusive  evidence 
of  the  conviction  of  the  principal,  and  prima  fa'rie  evi- 
dence of  his  guilt;  ami  this  rule  applies  to  a  case  where  the  princi- 
pal is  a  negro,  and  the  accessary  .1  white  man,  even  though  the  con- 
viction of  the  principal  was  procured  by  the  testimony  of  ne- 
groes.    State  v.  Ghittem,  -  Dev.  4!». 

.">  On  the -trial  of  a  white  man  eharged<as  an  accessory  to  a 
negro,  the  testimony  of  negroes  is  admissible  upon  the  question 
of  the  principal's  guilt,  but  not  1  1  prove  Ehe  incitement  by  the 
accessory.     Ibid- 

(>.  On  the  trial  of  one  indicted  as  an  a&  essoiy  in  the  crime  of 
murder,  a  transcript  of  the  record  of  the  conviction  of  the  prin- 
cipal was  received  in  pidi  nee,  though  it  appeared  from  it  that 
the  case  had  been  to  the  supreme  court  upon  an  appeal,  and 
been  sent  hack  without  1 1c  decision  of  that  court  appearing  upon 
it.  it  was  In-Ill  that  though  the  docisien  of  the  supreme  court  should 
properly  have  been  entered  mi  the  record,  yet  tin-  transcript  was 
good  evidence  against  the  accessory,  for,  at  must,  the  judgment 
against  the  principal  was  onilv  erroneous.  State  v.  Duncan,  •' 
I  red.   2/tti. 

7.  An  accessory  cannot  take  advantage  of  error  in  the  record 
against  the  principal-;  ami  the  attainder  <>t'  the  principal,  while 
unreversed,  is  prima  facie  evidence  against  the  accessory  of  the 
principal's  guilt.     //  id. 

8.  There  can  be  no  accessories  in  inferior  of]  nces;  but  what- 
ever will  n.;i  he  ,-i  man  accessory  before  the  fact,  in  felony,  will 
make  him  a  principal  in  trespass  ami  other  misdemeanors,  as  in 
battery  and  forgery  at  common  law.  Procurers  ami  aiders. 
therefore,  in  such  cases  are  principals,  and  maybe  so  charged  in 
an  indictment.     State  v.  Cheek,  13  fred.  111. 

See  (Evidence— In  criminal  proceedings  and  indictments 
58  &&,)  (Larceny  7  :>.  | 


ACCOMPLICE. 

See  (  Evidence — In  criminal  proceedings  ami  indictments,  12 
A  19-42.-43  50-70  82.1 


ACCORD   AND    SATISFACTION. 

1.  [f  an  obligor  pay  a  less  sum  than  is  due.  either  before  the 
lay  specified,  in-  ;ii  any  other  place  than  is  limited  by  the  coq* 
lition,  it  is  a  good  satisfaction.     Smith  v  Brown,  .">  Hawks  580! 

:'     \n  accord  and  satisfaction,  made  before  the  breach  of  .a 


A.CCOUNT.  7 

covenant,  cannot  be  pleaded  in  bar  of  the  covenant;  but  where 
any  damage  lias  accrued  under  the  covenant,  accord  and  satis- 
faction may  1"'  pleaded  in  bar  of  such  damage.     Ibid. 

3.  An  accord  without  a  satisfaction  is  nothing.  Sin/In  v 
Strain,  3  Dev.  24. 

4.  A  receipt  acknowledging  the  payment  "1'  a  particular  sum. 
without  stating  it  to  lie  in  full,  is  not  in  itself  evidence  to  sup- 
port the  plea,  of  accord  and  satisfaction.  McCuUen  v  //<««/,  ."> 
Dev.  219. 

5.  Where  A  owed  B,  by  bond,  and  it  was  agreed  between 
them  that  A  should  pay  tin'  debt  by  instalments,  and  execute  a 
new  bond  for  the  balance  due  after  each  payment,  it  was  held 
that  an  offer  of  performance  by  A  was  not  a  liar  to  an  action  on 
a  bond  delivered  after  the  agreement  State  'BankvLittlejohn, 
1  Dev.  &  Bat.  563. 

6.  A  plea  i  if  an  accord  and  satisfaction  must  aver  an  accep- 
tance, by  the  plaintiff,  of  the  thing-  agreed  to  In-  given  in  satis- 
faction.     Ibid. 

7.  A  parol  agreement  cannot  he  received  to  support  a  plea  "I 
an  accord  and  satisfaction,  loan  action  of  debt  upon  a  bond. 
Ibid. 

s.  An  entry  on  the  record  of  a  suit,  that  "the  costs  are  to  be 
paid  by  the  defendant,"  is  nut  even  prima  facie  evidence,  to  be 
left  tn  tin-  jury,  of  an  accord  and  satisfaction.  Band  v  McNider, 
:\  [red.  440. 

!i.  Where  a  certain  duty  arises  under  a  sealed  instrument, 
accord  and  satisfaction  by  parol  merely  is  no  sufficient  answer, 
for  a  deedfmght  to  he  avoided  by  a  matter  of  as  high  a  nature. 
But  where  the'  covenant  sounds  altogether  in  damages,  though 
secured  bj  a  penalty,  accord  and  satisfaction  executed,  though 
in  parol,  is  a  good  defence.     Cabt  v  Jameson,  10  Ired.  193. 

10.  The  payment  of  a  lesser  sum  than  the  amount  claimed,  if 
received  as  a.  satisfaction,  "where  the  amount  in  controversy  is 
unascertained,  will  support  the  plea  of  accord  and  satisfaction. 
Mathis  v.  Bryson,  4  Jones,  508. 

See  (Evidence — Parol  evidence,  when  admissible  26,)  (Re- 
cord, 8.) 


ACCOUNT. 

1.  The  action  of. account  will  not  lie  fur  a  1<  gatee  against  an 
executor,  or  the  executor  of  such  executor.  Eaves  v.  Starkey, 
Mai".  4a,  (39)  S.  1'.  and  probably  S.  < '.  Anonymous  1.  Hay. 
£26,(259.) 

■>.  In  .the  action     if  account    there  are  two  judgments;  first. 


8  ACT  OF  ASSEMBLY. 

that  the  plaintiff  and  defendant  account  together;  secondly,  thai 
the  plaintiff  or  defendant  recover  the  !  >alance  found  to  be  du< 
from  one  to  the  other.  In  order  to  obtain  the  first  judgment,  it 
is  not  necessary  for  the  plaintiff  to  show  that  the  defendant  is 
indebted  to  him  as  bailiff,  &c.  He  need  only  show  that  he  is 
bound  to  account  with  him  as  bailiff,  or  as  a  tenant  in  eommon, 
who  has  been  in  the  pernancy  of  the  profits,  and  the  right  to 
this  judgment  can  only  be  barred  by  proof  on  the  part  of  the 
defendant  that  he  has  already  accounted,  or  by  a  denial,  uncon- 
tradicted on  the  part  of  plaintiff,  of  the  existence  of  any  such 
relation  between  the  parties,  as  gives  the  plaintiff  the  right  to 
call  for  an  account.     McPherson  v.  McPJierson,  11  Ired.  391. 

3.  Where  there  are  several  tenants  in  common,  some  of  whom 
have  been  in  the  receipt  of  profits  and  some  not,  each  of  the 
latter  must  bring  his  own  action  of  account  for  what  he  claims; 
they  cannot  bring  a  joint  action  in  the  names  of  two  or  more, 
to  recover  their  several  shares.  So,  where  several  tenants  in 
common  receive  the  profits,  unless  it  can  be  shown  that  they 
received  them  jointly  as  partners,  an  action  of  account  cannot 
be  brought  against  them  jointly,  but  each  must  be  sued  sepa- 
rately; and  if  either  of  these  cases  appear  upon  the  trial,  the 
court  will  order  a  nonsuit.     Ibid. 

4.  Every  tenant  in  common,  who  has  been  in  the  enjoyment 
of  the  property,  is  liable  to  account;  and  it  is  not  material  what 
was  the  mode  of  enjoyment,  whether  he  used  it  merely  for  shel- 
ter, or  as  a  means  of  supporting  himself  and  family,  or  made 
money  by  selling  the  products,  or  received  money  as  rent.    Ibid. 


ACT  OF  ASSEMBLY. 

1.  An  act  of  Assembly  takes  effect  from  the  beginning  of  the 
session  at  which  it  is  passed.  Smith  v.  Smith,  Mar.  26,  (14,)  S. 
P.  Sv/mner  v.  BarksdaU,  Conf.  Rep.  Ill,  (241),  (It  is  now  pro- 
vided by  the  act  of  1799,  Rev.  Code,  ch.  52,  sec.  35,  that  it  shall 
be  in  force  only  from  and  after  thirty  days  after  the  rise  of  the 
session,  unless  otherwise  directed.  An  act  directed  to  take  ef- 
fect from  and  after  "its  passage,"  will  take  effect  from  the  be- 
ginning of  the  session,  but  not  if  it  had  been  from  and  after  "its 
ratification."  Weeks  v.  Weeks,  5  Ired  Eq.r  111  S.  P.  Hamletv. 
Taylor,  5  Jones  36.) 

2.  Where  there  are  two  statutes  in  pari  materia,  and  the  lat- 
ter contains  no  words  of  repeal,  they  are  to  he  construed  as  one 
Ea.w.    State  v.  Grove,  Mar..  43,  (36)..     (The  Stat,  of  2  and  3  Phil. 


ACT  OF  ASSEMBLY.  If 

and  Mary,    eh.  10,  and  the  act  of  1715,  Teh.  1,  of  the  R.  C.  of 
1820]  are  cons    i  I  ited  in  the  Rev.  Code,  ch.  35,  sec.  1.) 

3.  When  a  statute  uses  a  word,  the  meaning  of  which  is  un- 
derstood at  the  common  law,  it  shall  have  the  same  Bense  in  the 
statute  which  it  had  at  common  law  ;  and  where  the  provision 
ofastatuteis  general,  it  is  subjectto  the  control  and  ord 

the  common  law.     KitcJien  v.  Tyson,  •">  Murph.  314. 

4.  If  a  '■  allowed  by  a  statute  to  be  a  witness  who  was 
inadmissible  .-it  common  law,  he  becomes  al  once  affected  by  all 
the  rules  and  principles  which  appertain  to  that  character;  and 
if  the  statute  r<  smove  one  disability  tin,-  others  remain  in  full  fi  irca 

I  bill. 

5.  A  remedial  statute  is  to  In-  construed  so  as  to  advance  the 
intention  of  the  Legislature;  as  where^bythe  art  of  1815,  incor- 
pprating  the  Cape  Fear  Navigation  Company,  no  power  to  col- 
lect tolls  is  expressly  given,  unless  bythat  section  "which  con; 
fers  on  the  company  all  the  powers,  which  the  8th  sectionof 
the  act  of  1812  gives  to  the  Roanoke  Navigation  Company,  and 
that  section  authorizes  the  latter  company  to  demand  their  tolls 
at  tin-  Falls  of  Roanoke,  it  was  /'-A',  that  tin-  Cape  Fear  Naviga- 
tion Companymight  demand  their  toll  at  any  place  en  the  Cape 
Fear  river.     State  v.  Patrick,  '■'>  Dev.  -17*. 

(3.  In  the  construction  of  public  and  private  statutes  a  differ- 
ent rule  prevails.  The  latter  are  never  extended  beyond  their 
words  or  a  necessary  implication  from  them,  and  are  restrained 
in  favor  of  the  rights  of  those  who  are  not  mentioned  in  them. 
Drake  v.  Drake,  4  Dev.  110. 

7.  Where  a  private  act  requires  the  assent  of  a  particular  per- 
son to  its  validity,  parol  evidence  of  that  assent  may  lie  given. 
But  evidence  that  a  person  procured  one  to  he  passed,  or  subse- 
quently assent  d  to  it.  is  not  admissible  to  extend  its  effect  :  as 
where  a  bastard  was  legitimated  but  without  saying  to  whom, 
evidence  that  his  reputed  father  procured  the  passage  of  the 
act  does  not  legitimate  the  bastard  as  to  him.     Ibid. 

8.  In  act,  making  it  an  indictable  offence  to  fell  timber  on  a 
certain  creek  in  a  particular  county,  is  a  public  law,  and  need 
not  be  recited  in  an  indictment  tinder  it.  Stuff  v.  Cobb,  1  Dev. 
and  Bat.  115. 

it  An  act.  which  declares  a  crime,  of  which  all  persons  are 
capable,  and  renders  it  punishable  by  indictment  am!  line,  is  a 
public  law.     Ibid. 

10.  Words  of  reference,  as  "such  persons"  or  "the  persons  so 
offending,"  shall  he  implied  in  an  act  creatine- a  small  misde- 
meanor, if  the  context  shows  that  such  is  clearly  its  mean- 
ing.    Ibid. 

11.  Where  different  obieets  of  policy  may  have  dictated  an 
act  creating  an  indictable  offence,  none  of  which,  however,  are 


10  ACT  OF  ASSEMBLY. 

expressed,  it  shall  not  be  construed  with  reference  to  one  of  the 
objects  only.     Ibid. 

12.  All  the  acts  passed  at  the  same  session  of  the  Legislature 
are  tii  be  considered  as  but  one  statute.  Therefore,  the  Re- 
vised Statutes  passed  al  the  session  ot  183(3,  constitute  but  otic 
st;  ate.  Statev.  Hill  .".  [red.  505.  (The  same  may  lie  said  of 
ihe  Reviged  Code  enacted  at  the  session  of  1854.) 

.>.">.  The  act  of  1800,  imposing  a  penalty -on  persons  retailing 
^spirituous  liquors  by  the  small  measure,  in  the  towns  ef  New- 
born and  Wilmington,  without  the  permission  of  the  commis- 
sioners of  those  towns  respectively,  is  a  private  act,  an&;wasnot 
•repealed  bythe  general  law  upon  the  subject  o"f  retailers,  passed 
in  1825,  nor  by  the  Revised  Statutes  of  1836.  McRae\  Wessel, 
■J!  Trcd.  153.  (Nor  was  it  repealed  by  the  Revised  Code  of 
1854     See  ch.  L21,  see.  8.) 

14  The  act  of  1823,  ch.  74,  relating  to  the  sales  of  land  under 
■execution,  in  the  county  of  Pasquotank  and  other  counties  there- 
in named,  is  a  local  and  private  act,  and  was  not,  therefore,  re- 
pealed by  the  2d  see.  ch.  1,  of  the  Rev.  Stat.,  being  within  the 
proviso  in  the  8th  see.  of  that  chapter.  Grancly  v.  Morris,  6 
[red.  133.  (Nor  is  it  repealed  bythe  Rev.  Code.  See  ch.  121. 
sec.  8.) 

]">.  One  part  of  a  statute  may :be  public  in  its  nature,  while 
another  is  local  and  private;  and  those  parts  of  the  acts  of  1820, 
1821  am!  1822,  (relating  to  Hie  plaeesfbrthe  sales  of  Land  under 
execution,)  which  concern  particular  counties  merely,  are  to  be 
taken  to  be  of  the  latter  kind,  and  are  therefore  saved  from  the 
general  repealing  clause  of  the  Rev.  Stat.,  ch.  1.  sec.  2.  bythe 
proviso  in  the  8th   section.     Humphries  v.  Baxter,  G   I  red.  437 

(.See   Rev.   Cod.'  ell     121,  see.   8.  ) 

16.  It  is  a  rule  for  the  construction  of  statutes,  that  when 
they  make  use  of  words  and  phrases  of  a  definite  and  well 
known  sense  in  the  law,  they  are  to  be  received  and  expounded 
in  the  same  sense  in  the  statute.  Adams  v.  Turrentine,  8 
I  red.  147. 

17.  Every  affirmative  statute  is  a  repeal,  by  implication,  of  a 
prior  affirmative  statute,  so  far  as  it  is  contrary  to  it.  But  the 
law  does  not  favor  these  implied  repeals,  nor  are  (hey  to  be 
allowed  unless  the  repugnancy  be  plain;  and  where,  in  the  lat- 
ter act,  there  is  no  clause  of  non  obstante,  it  shall,  if  possible, 
have  such  a  construction,  that 'it  shall  not  operate  :i  repeal. 
State  v.  Woodside,  9  [red.  496. 

18.  In  the  construction  of  an  act  of  Assembly,  all  other  acts 
made  ;„  pari  materia,  whether  referred  to  or  not  in  that  under 
consideration,  will  lie  taken  as  one  system,  and  so  construed. 
State  v.  Melton,  Bush.  49. 

19.  Though  tin/  caption  as  well  as  the  preamble  of  a  statute; 


A(  TION  ON  THE  CASE— T. 


11 


where  t'hv  meaning  of  its  provisions  is  vague,  may  be  called  in 
aid  of  its  construction,  neither  can  control  its  enactments  when 
they  are  full  and  certain.     Blue  v.  McDujfie,  Busb.  131. 

20.  An  act  it  Assembly,  which  provides  that  it  shall  be  in 
force  from  and  after  its  /mss-m/r,  is  in  force  and  takes  effect  from 
the  first  day  orf  the  session  in  which  it  passed  Hamlet  v.  Tay- 
lor, •">    .Tunes    :')().        (See   t-ev.   Cede.  eh.   52,   sec.  35.) 

See  ( [ndictiiii  nt— Form  and  matters  relating  thereto,  7T>.) 


ACTION    ON   THE    CASE. 


I.  For  Conspiracy. 
II.  For  Deceit. 

III.  ¥01'  Malicious  Prosecution' 

IV.  For  Slander. 


V.  When  tlie  action  will  or  will  not  lie 

in  other  cases. 
YI.  When  the  action   will   or  will  not 

ahate. 


'.    FOS     CONSPIRACY. 


1.  An  action  on  the  case  in  .the  nature  of  a  conspiracy  will  lie 
against  ma',  or  if  brought  against  many,  a  verdicl  may  he 
found  in  favor  of  all  except  him-.  Eason  v  Wesibrooh,  2  Murph. 
329  S.  C.  X.  C  Tern,  \l.  267,  (.690.) 

2.  A  private  person  can  obtain  redress  for  a  •  msj  racy  by  an 
action  en  the  case,  only  when  it  operates  to  his  injury,  ami 
when,  as  to  him,  the  object  ie  unlawful.  Eason  v  Petway,  1 
Dev.  &  Bat.  44. 

3.  To  c  i  'i  |-  reons  with  a  conspiracy  to  cheal  and  defraud 
a.  third  person,  there  must  be  a  collusion  and  participation  in 
the  scheme,  or  its  execution.  Mere  silent  observation  and  ae- 
iiuieseeii.se  are  nut  sufficient;  for  unless  the  persons  charged,  by 
some  word  or  deed,  became  parties  to  the  plot  to  cheat,  they 
could  neither  have  influenced  the  acts  of  the  person  defratided, 
nor  contributed  to  his  losses,  and,  fchi  refore,  they  are  not  liable 
to  his  action.     Brannock  v  Bouldin,  4  Ired.  til. 

4.  One  may  he  bound  to  speak  the  truth  concerning  any  mat- 
ter or  thine',  with  which  he  or  his  rights  are  connected,  and  not 
suffer  another  to  deal  respecting  them,  under  a  delusion.     Hut 

in  I'esj t  to  matters,  with  which  he   is  in  no  wise  concerned  or 

connected,  he  is  not  charged  with  the  legal  duty  of  preventing 
mischief  to  others,  by  communicating  what  he  knows,  hut  he 
.may  be  silent.      Ibid. 

.5.  An  action  on  the  case  for  a  conspiracy  cannot  be  sustained 


12  ACTION  OX  THE  CASE.— I.-II. 

upon  the  ground  that  the  defendants,  having  an  execution 
levied  on  the  plaintiff's  property,  required  that  the  sale  should 
he  for  specie;  nor  on  the  ground  that  the  defendants  had  by 
fraud  obtained  from  the  plaintiff  the  assignment  of  a  judgment, 
and  thf  transfei  of  a  bond  not  endorsed,  for  in  a  ctftirt  of  law 
the  property  in  tbese  remained  in  the  plaintiff;  nor  can  it  be 
maintained  upon  the  ground  that  the  defendants  had  fraudu- 
lently procured  a  eenveyance  of  a  slave  from  the  plaintiff;  lor 
if  the  fraud  or  imposition  were  of  such  a  nature  as  rendered  the 
conveyance  void  at  law,  then  the  plaintiff  had  not  lust  his  prop- 
erty; if  the  conveyance  were  good  a!  law;  thru  the  plaintiff's 
only  redress  was  in  <  quity.     Setzar  v  Wilson,  4  Ired.  501. 

(!.  A  conspiracy  to  vex  and  harass  a  person  by  having  him 
subjected  to  an  inquisition  of  lunacy,  for  which  there  is  no  prob- 
able cause,  is  actionable.     And  where  express  malice  is  proved, 

it  is  no  defem r  palliation, that  the  defendants  had  applie  I  ■<  r 

professional  advice  and  had  acted  under  it.  Davenport  v.  Lynch, 
6  Jones  545. 

II.    FOR   DECEIT. 

1.  Case  lies  against  cue  not  a  party  to  the  contract,  for  de- 
ceitfully asserting  that  an  unsound  mare  is  sound,  and  fraudu- 
lently encouraging  the  plaintiff  to  buy  her.  Irwin  v.  SherrU, 
Tay.  1. 

2.  In  an  action  for  a  deceit  in  the  sale  of  an  unsoun  1  uegr^ 
the  declaration  stated  a  false  affirmation,  as  the  means  whereby 
the  plaintiff  was  induced  kemake  the  bargain  ;  and  the  making 
such  affirmation,  with  a  knowledge  of  its  untruth,  constituted 
the  gravamen,  he'd,  that  the  action  was  conceived  in  case  on  a 
tort,  and  the  declaration  was  good.  Inge  v.  liomJ,  3  Hawks, 
1(11. 

.">.  Where  the  purchaser  of  a  slave  lias,  at  the  time  of  his  pur-! 
chase,  as  full  a  knowledge  of  the  defect  ol  the  slave  as  the  sell- 
er has.  no  matter  how  he  obtained  this  knowledge,  he  cannot 
afterwards  recover  for  the  defect.  Brittain  v.  Israel,  3  Hawks, 
222. 

4.  An  action  will  not  lie  for  a  deceit  in  an  executory  contract, 
respecting  the  sale  of  land.  Quere,  whether,  when  land  has 
been  actually  sold,  and  there  has  been  a  false  affirmation  as  ta« 
title,  an  action  for  deceit  will  lie.     Fagan  v.  Neiosom,  1  Dev.  20E 

5.  Y\  hen  no  loss  is  caused  by  a  falsehood,  an  action  for  a  de- 
ceit will  not  lie  ;  neither  will  it  lie,  when  ordinary  prudence 
would  have  prevented  the  deception.  Farrar  V.  Alston,  1 
Dev.  69. 

6.  Where  a  surety  is  informed  by  the  administrator  of  his 
principal,  that  the  debt  has  been  paid,  ami  trusting  to  this  re- 
presentation, neglects  to  secure  himself,  it  seems  that  he  can 
maintain  an  action  for  deceit.     Ibid. 


\(Tlo;\  OK  THE  CASE.— II. 

7.  Moi  de  in  a  party,  such  as  a  fraudulent  re 
tation  or  cono  alnient,  i1  is  in  cessary  to  charge  in  ah  action  fos 

.   ■  .  I  Dev.  350. 

8.  When  tli  I  n<  ■  ,  in  an  action  for  deceit,  in  the  sale  of 
a  slave,  hail  I  aed   that  the  slave  was   unsound,  it  was 

a1  i  not  believe  it,  he  was  not  answerable  for  nol 

disclos  ing  it.      livid. 

9.  If  a  del   tidanl    in    an    execution    fraudulenth    in* 
sheriff  to  sell  unsound  propi  n  ';  a  .; 

ej  and,  he  may  be  sued  by  tl 

for  a  deceit.     Erwin  v  Greenlee,  1  Dev.  &  Bat. 

10.  Where,  at  the  time  of  the  sale  of  land,  a  i  '  audi 
lent  affirmation  ol  made,  yet  an  ai  the  cas< 
for  dtx-eit  will                      the  vendi   >  might,  by  reasonable  dili- 

have  informed  hhuself  of  its  true  value.     , 
. ..  2  Ired.  32. 

11.  It  seems  that  such  an  action  will  lie  if  a  false  affirmation 
be  made  of  the  rent  of  the  land.     Ibid. 

12.  Where  A  agr<  ed  to  buy  a  number  of  horses  from  B,  ami 
it  was  referred  to  an  arbitrator  to  decide  upon  the  value  of  the 
horsi  s,  and  he  decidi  d  thai  two  of  them  were  worthless,  having 
an  incurable  and  contagious  disease,  and  so  informed  A,  yet  A, 
by  a  subsequent  agreement,  took  them  and  kept  thi  m  with  his 
other  horses,  whereby  he  lost  many  of  the  latter,  it  was  held 
thai  li<'  could  not  maintain  an  action  on  the  case  in  the  nature 
i'f  deceit  against  B.     Spencer  v  McLean,  2  Ired.  93. 

13.  Where,  in  an  action  for  a  dei  <  it  in  the  sale  of  a  horse,  it 

was  j-roved  that  the  liorse  went  blind  i  afl    ■  be  was  sold 

without  any  subsequent  hurt  or  ill  usage;  that  in  the  oj  inion  of 
a  farrier  his  eyes  were  naturally  defective;  that  thi  defect  was 
such  as  would  not  rentier  the  horse  Mind  suddi  illy;  and  that 
the  defendant  had  bred  the  horse  and  owned  him  till  he  was 
nine  years  old;  thesi  are  circumstances  the  judge  must  leave  to 
the  jury  as  tending  to  prove  thi  •  n  nt<  •;  and  he  has  no  right  to 
say  there  was  no  evidence  on  that  point.  Qui  v  Pinson,  '■> 
Ired.  47. 

14.  Where  one  has  given  a  deed  intrust  on  his  property,  author- 
izing a  sale  for  the  benefit  of  his  creditors,  and  they  have  neither 
released  their  claim  on  him,  nor  assenteito  the  deed,  he  has  such 
an  interest  in  the  property,  that  if,  at  a  sal"  mad.'  by  his  trustee, 
he  stands  by  and  sees  property  sold  in  which  he  knows  there  is 
a  latent  defect  and  docs  not  disclose  it.  he  makes  himself  liable 
to  the  purchaser,  in  an  action  on  the  ease  tor  a  deceit.  Cast  \ 
Edney,  4  Ired.  93. 

15.  A  vendor  is  Hal  tie  in  an  aetianof  deceit,  for  false  repre- 
sentations as  to  the  title  or  qualities  ol'  a  chattel  sold  by  him  ; 
Bmt  no  action  for  a  cheat  has  ever  been  mail  tained  by  a  seller 


14  ACTION  ON  THE  CASE.— II. 

against  a  purchaser  for  the  misrepresentations  ®f  the  latter 
upon  these  points.     Setzar  v  Wilson,  4  feed.  501. 

ll>.  Where  a  vendee  takes  an  article  at  his  own  risk,  or  with 
all  faults  ami  defects,  the  vendor  is  not  responsible  for  not  dis- 
closing any  faults  or  defects  lie  may  Know  to  exist  in  the  thing 
sold:  unless  be  makes  use  of  some  artifice  or  practice  to  conceal 
such  faults  of  defects,  or  to  prevent  the  purchaser  from  discov- 
ering them.     Smith  v    thdrt  ws,  8  [red.  3. 

17.  In  an  action  of  deceit  for  the  sale  of  an  unsound  slave,  it 

is  competent  for  the  defendant  to  give  in  evidei ,  as  a  matter 

to  aid  the  jury  in  assessing  damages,  what  the  plaintiff  gave  for 
the  slave  and  for  what  be  afterwards  sold  her  Small  v.  Booh 
s  feed.  47. 

18.  Where  an  action  was  brought  to  recover  t&e  value  of  cer- 
tain horses,  alleged  to  have  died  from  eating  corn  mixed  with 
arsenic,  which  the  plaintiff  bought,  from  the  defendant,  it  was 
held  that  though  the  defendant  had  fraudulently- concealed  from 
the  plaintiff  the  fact  that  arsenic  was  so  mixed  with  the  corn. 
yet  the  plaintiff  could  only  recovepdamage  to  the  value  of  the 
corn,  provided  he  was  informed,  before  he  gave  it  to  his  horses. 
that  arsenic  had  been  mixed  with  it.  Stafford  v.  Newsom,  V 
feed.  507. 

lit.  It  is  not  sufficient,  in  an  actiato  on  the  case  in  the  nature  of 
deceit,  to  prove  that  the  representations  of  the  defendant  were 
calculated  to  deceive,  hut  they  must  be  mad"  with  intent  to  de- 
ceive.    Ibid 

20.  Where  a  purchaser  takes  an  article  at  his  own  risk,  or 
with  all  faults,  he  becomes  his  own  insurer,  and  the  seller  is 
relieved  from  all  obligation  to  disclose  any  fault  he  may  know 
that  the  article  has;  but  he  must  no1  res  irl  to  any  trick  or  con- 
trivance to  conceal  *  defect,  or  mislead  tile  purchaser.  Fearer 
v.  Blacfovett,  \i  feed  *9. 

21.  tf  the  vendor  of  a -slave  nsake  to  the  vendee,  al  the  time 
of  the  sale,  an  affirmation  astotliB  soundness  of  the  slave,  which 
is  false  within  his  knowledge,  he  is  responsible  to  the  vendee  in 
damages.      /"<  rebe\   v.  Gordon,  13  [red.  350. 

■I'l.   A  dei  I:  rati  a  indeceil  I'1  r  an  an  round  negro,  alleging  the 
idness  to  have  proceeded  from  drunkenness,  is  uol    sup- 
ported by  evidence,  showing  merely  that  the  negro  had  a  pro- 
io  get  drttnk,  and  a   habit  of  intemperance.     The  un- 
soundness must   l>  .  I       u  ■  ted  at   ll"-  time   of  the 
sul'.      Eaves  v.  Tirftij.  18  feed.  4<38. 

23.   Where  the  executor  of  one  tenant  in  common,  authorized 

la    fishery,  takes  along  with   him  the  other  tenant,  and 

refers  tin    purchaser  to  him  as  one  acquainted  with  tin:  property,.. 

and  such  tenant  commits  a   fraud  in   his  representati if  the 

qualities  and  condition  of  the  fishery,  sin  h  •  •  >outor  is  person-- 


ACTION  ON  THE  CASE-— II.  15 

ally  liable  in  an  action  on  the  case  for  the  deceit.     Pettijohn  \ 
Williams,  1  Jones  14.">. 

24.  In  an  action  for  a  decit  in  a  false  warranty,  on  the  ex - 
change  of  horses,  the  defects  of  the  property  which  the  defend- 
ant received  from  the  plaintiff  fcirnisli  no  ground  of  defence, 
.and  therefore  cannot  be  given  in  i  videnee  Odom  V.  Harrison, 
1  Joins  402. 

25.  In  an -action  for  a  deceit  in  the  sale  of  a  mule  alleged  to 
have  been  unsound,  the  want  of  castration  does  not  sustain  the 
allegation.     Duckworth  v.  Walker,  i  Jones,  507. 

26.  Could  the  want  of  castration  be  regardedas  unsoundness, 
the  fact,  that  the  mule  had  the  usual  d<  relopments  in  the  scro- 
tum, would  cause  the  maxim  of  caveat  emptor  to  apply  when  tin 
sale  was  by  public  auction.     Ihid. 

27.  A  person  is  not  guilty  of  a  fraudulent  concealment,  so  as 
to  subject  him  to  an  action  for  a  deceit,  who  foils  to  disclose  in- 
formation  which  he  has  received  as  to  unsoundness  iuthe  article. 
if  lie  did  net  believe  such  information  to  be   hue.      Gerkins  v 
Williams,  3  Jones,  11. 

28.  An  action  for  a  deceit  in  the  false  representation  of  the 
quality  of  a  $5ng  will  not  lie,  if  the  same  sources  erf  informa- 
tion are  equally  open' to  the  buyer  and  seller.  Fieffls  v.  Mouse, 
3  Jones  72. 

2'.».  An  action  on  the  case  for  deceit  will  not  lie  for  a  fraud- 
ulent representation,  upon  the  sale  of  a  tract  of  land,  m  to  where 
certain  lines  ran.  and  as  to  particular  lands  being  ineladed  with- 
in the  motes  and  bounds 'called  for  in  the  deed.  Eyilev.  Bird, 
.">  Joins  222. 

30.  Where  the  seller  of  a  slave  refuses  to  insert  a  warranty 
of  soundness  in  the  bill  of  sale,  but  is  willing  to  warrant  the 
title,  anil  a  neighbor  informs  the  buyer  that  thenegro  is  un- 
sound, the  symptons  being  neither  hidden  nor  hard  to  discover, 
the  rule  of  caveat  en  lies,  notwithstanding  an  affirmation 
by  the  seller  that  the  slave  is  sound;  and  it  cannot  be  subi 

as  a  question  for  the  jury,  in  an  action  for  deceit,  whether  the 
buyer  relied  on  the  assertion  of  the  seller  or  the  information 
given  by  the  neighbor      FuUemoider  v  Boston,  3  Jones  528. 

31.  Where  i'>,  a  tli  ■  ■•  ■  nil  of  the  makers  of  a  promissory 
note,  payable  to  A,  ;  on  him.  by  fraud  and  misn  | 

i , !   i  1 1 1    n  i  it       i         ;    r  pei    m    i  i 
satisfaction  of  nis  note,  and   thus  pi  an  A   a  receipt  in 

full  of  his  note,  it  i  ■  i  !  thai  though  the  note  payable  to  A 
was  worth  nothing  ;  of  th    in  olvency  of  the  n 

and  was  never  dehvered  to  them  (having  been  filed  in  the 
clerk's  I   A  was  entitled  to  recover  from  B,  at  least, 

Mo  '        es  543. 

32.  Where  counts  for  a  deci  it  and  ■  ranty  are  joined 
in  the    i  me  declaration,  the  plaintiff  may  recover  on  the  count 


LS  ACTION  'ON  THE  CASE.     I 

for  tke  false  Warranty,  without  alleging  or  proving  a  scienter. 
Blanton  v  Wall,  d  Jones,  532. 

33.  In  an  action  for  a  deceit  in  tin  sale  of  a  1  orse,  where  the 
unsoundness  alleged  was  the  loss  of  the  frogs  of  the  fori,  w  hicb 
might  have  been  discovered  upon  ordinary  inspei  tion,  in  thing 
having  been  said  or  done  by  the  seller  to  prevent  enquiry,  /'/ 
was  held  that  the  plaintiff  could  not  recover.      Tho  >j>   n\  v  Mor- 

VIS,  -r)  done:-,   la'. 

34   Mere  silence  on  the  pari  ofa  vendor,  who  has  km  ■■  !  dge 
of  a  latent  defect  in  the  article  "old.  will  render  him  liabL      i  an 
action  for  a  deceit  ;  but  it  is  otherwise  it  the  defect  hi    p 
for,  in  such  ease,  he  is  liable  van  a  he  maki  s  a  false  stateim 
resorts  to  some  artifice  to  conceal  tiie  defect.     Broin 

6  -lone-.    103. 

35.  A.  sheriff,  who  is  selling  property,  is  nol  liabL  t  an  action 
of  deceit  for  mere  silence  as  to  the  existenc  iof  a  prior  lien  on  it, 
in  his  hands,  but  if  he  does  or  says  anything  intended  or  calcu- 
lated to  mislead  a  purchaser,  in  this  respect,  lie  is  liable!  Wicker. 
v.  Worthy,  G  Jones,  -221.  S.  C,  G  Jones,  500. 

'.  person  cannot  sustain  an  action  of  deceit  with  respect 
to  property  purchased  by  him,  unless  he  uses  reasonable  can? 
tion  and  diligence  to  prevent  the  deceit,  but  enquiring-  ofa 
sherifl  and  relying  upon  his  information,  as  to  any  liens  and 
levies  of  executions  .he  may  have  in  his  hands  upon  the  property 
sold,  is  exercising  reasonable  caution  and  diligence.  Ibid,S. 
•('.,  i;  Jones,    ■'•« 

;;?.  Where  b<  Bh  the  buyer  and  seller  of  a  horse  could  and  did 
see  a  knot  i  n  <me  of  his  leas,  but  tic  seller  misrepn  sented  the 
icause  which  produced  it  >aud  the  nature  of  it:  it  was  held  that 
sthis  amounted  to  some -.evidenee.  on  the  question  whether  artifice 
had  been  msec!  b$  theseller,  to  divert  the  buyer's  attention  from 
!h-  d>  feet.     Simmons  v.  Hbrton,  6  Jones,  278. 

38.  The  purchaser  of  cotton,  packed  in  bales,  is  not  guilty  of 
negligence  in  net  cutting  them  open  to  examine  whether  sand 
has  not  lie, -ii  mixed  with  the  cotton;  and  the  rule  of  caveat  emptor 
does  not  apply  lo  him  under  such  circumstances.  Stout  v  Har? 
per,  (i  .lone:-..  :\  17. 

.".!».  The  private  sale  ofa  horse  on  a  Sunday  by  a  horse  dealer, 
to  a  person  who  knew  his  calling,  was  held,  (Battle  J.,  dissenting) 
not  to  be  such  violation,  by  tire  buyer,  of  the  act,  Rev.  Stat.  ch. 
118,  sec  1,  as  to  prevent  him  from  recovering  in  an  action  for  a 
.deei-ii.aeil  false  warranty,  against  tho  seller.  Melvinv.  Easley, 
,7  Jones.,  856      (See  Rev.  Code.  ch.  115,  sec.  1.) 

4(1.  In  an  ae.i  ■.•  tor  deceit  in  the  sale  of  a  horse,  which  was 
effected  With  spavin,  and  was  slightly  lame  with  a  visible  hurt 
•on  the  leg  affected,  hut  the  plaintiff  took  the  horse  without,  see- 
ing him  in  motion;  it  wet*  held,  that  the  defect  being  pad  lit.  and 
there  1  eing  no  evidence  o-i   any  art  to  withdraw  the  jakintifT's 


ACTION  ON  THE  CASE.— H-ITI.  17 

attention  from  it.  lie  could  not  recover.  Ltiwson  v.  Bat r,  7 
Jones,  461. 

41.  In  an  action  for  deceit,  the  alleged  fraud  is  never  presum- 
ed, and  he  who  makes  the  allegation  must  prove  it  ;  and  every 
man  is  presumed  to  be  honest  in  his  dealings  until  the  contrary 
is  shown.      Tomlinson  v.  Payne,  8  Jones,  108 

(See  Executors  and  Administers — Of  their  liability  to  credi- 
tors, Ac,  35.) 

Ill,      FOR   MALICIOUS    PROSECUTION. 

1.  In  an  action  for  malicious  prosecution,  whether  there  was 
probable  cause  is  a  question  of  law  ;  but  the  facts,  which  go  to 
show  it,  must  be  ascertained  by  the  jury.  Legget  v.  Blount,  N. 
C.  Term    II  123,  (560.) 

2.  To  support  an  action  for  a  malicious  prosecution,  in  taking 
out  a  warrant  against  a  plaintiff,  on  a  charge  of  perjury,  it  is 
necessary  tor  the  plaintiff  to  show  a  discharge  ;  ami  if  a  party 
he  bound  over  to  attend  court,  anil  does  attend,  he  is  discharg- 
ed, unless  lie  be  rebound,  or  seme  action  be  taken  against  him. 
Murray  v.  Lackey,  2  Murph.  368. 

3.  In  an  action  for  a  malicious  prosecution,  the  dismissal  of 
a  State's  warrant  by  a  magistrate,  who  tried  the  case,  ie  prima 
facie  evidence  of  the  want  of  probable  cause,  and  throws  upon 
the  prosecutor  the  burthen  of  proving  thai  there  was  probable 
cause.     Johnston  \.  Martin,  3  .Murph.  24X. 

4.  If  (me  man  prosecute  another  lor  real  guilt,  he  is  not  liable 
to  an  action  on  tie-  case  tor  a  malicious  prosecution,  no  matter 
how  malicious  his  motive  may  lie  j  nor  is  he  liable,  if  he  prose- 
cute him  for  apparent  guilt,  arising  from  circumstances  which 
he  honestly  believes.     Plummer  v.  Glum,  :>  Hawks,  66. 

5.  The  question  of  probable  cause  is  compounded  of  law  and 
fact;  whether  c  .lain  circumstances  are  true  is  a  question  of 
fact  for  the  jury;  whether,   if  true,   they  amounl    to  probabL 

cause    is  a   ipiesti if  law   for   lie     court;   and  a    party   has   a 

right  to  the  opinion  of  the  court  distinctly,  as  to  the  law,  upon 
the  supposition  that  he  has  established  certain  facts  to  tin-  sat- 
isfaction of  the  jury.     Ibid. 

li.  Case,  for  suing  out  an  original  attachment,  is  to  be  consid- 
ered in  the  same  light  with  an  action  brought  for  suing  out  a 
writ,  where  nothing  is  due,  and  to  support  1  he  action  the  plain- 
tiff must  show  malice  and  the  want  of  a  probable  cause  in  the 
defendant.  No  action  lies  for  irregularly  suing  out  an  attach- 
ment, but  only  for  suing  it  on:  for  the  purpose  of  oppression 
and  wrong.      Williams  v  Hunter,  3  Hawks  545. 

7.  A  discharge,  by  a  magistrate,  upon  a- warrant  for  a  felony. 
is  prima  facie  evidence  of  the  want  of  probable  cause,  in  an 
action  by  the  defendant  against  the  prosecutor  for  a  malicious 
prosecution.     Bostick  v  Buth  rfora\  4  Hawks  83 


18  ACTION-  ON  THE  CASE.— III. 

8.  The  plaintiff  cannot  recover  in  case  for  a  malicious  prose  - 
cution,  without  producing  the  record  of  his  acquittal;  and 
where  the  defendant  in  the  indictment  was  convicted  of  the 
charge,  he  cannot  in  any  form  of  action  recover  against  the 
prosecutor,  although  he  shows  that  the  conviction  was  the  re- 
sult of  conspiracy  and  perjury.  Williams  v  Wovdhouse,  31 
Dev.  257. 

9.  Probable  cause  is  such  a  suspicion  as  would  induce  a  rea- 
sonable man  to  commence  a  prosecution ;  and  where  a  witness- 
swore  that  a  justice,  upon  the  return  of  a  State's  warrant,  said 
that  "he  would  commit  the  defendant  unless,!'  &c,  and  the 
justice  had  in  fact  said,  "he  would  bind  over  the  defendant 
unless,"  &c,  it  was  held  that  the  variance  did  not  constitute  pro- 
bable cause  for  a  prosecution  for  perjury.  Ccdxmess  v  Martin,  3 
Dev.  454. 

10.  Suing  out  a  warrant  "  for  talcing  a  false  oath  "  in  a  certain 
suit,  "knowing  it  to  be  false,"  is  a  prosecution  for  perjury.  Caba- 
ness  v.  Martin,  4  Dev,  106. 

11.  An  action  on  the  case  lies  against  any  person  who,  mali- 
ciously and  without  probable  cause,  prosecutes  another  befor»- 
any  tribunal,  and  thereby  subjects  him  to  an  injury,  either  in 
his  person,  property  orreputation.  And  a  court  of  law  can  de- 
termine whether  a  suit  in  equity  was  brought  for  the  purpose 
of  oppression  and  wrong.  Davis  v.  Gully,  2  Dev.  and  Bat. 
300. 

12.  An  action  for  a  malicious  prosecution  cannot  be  sustained,, 
where  a  verdict  and  judgment  of  conviction  have  been  had  in 
a  court  of  competent  jurisdiction,  although  the  party  was  after- 
wards acquitted  i, ,i>< >u  an  appeal  to  a  superior  tribunal.  GriJJis 
v.  Settars,  2  Dev.  and  Bat.,  4'.)  ± 

13.  In  an  action  for  a  malicious  prosecution,  a  verdict  and 
judgment  of  conviction  in  a  court  of  competent  jurisdiction,, 
although  the  party  was  afterwards  acquitted  upon  an  appeal  to 
a  superior  tribunal;  is  conclusive  evidence  of  probable  cause, 
and  precludes  the  plaintiff,  in  the  action  lor  the  malicious  prose- 
cution, from  showing  the  contrary..  Grijfis  v.  Sellars,  -4  Dev.  and 
Bat.,  17(1 

14.  Before  an  action  can  be  sustained  for  a  malicious  prosecu- 
tion or  arrest,  it  must  appear  that  the  prosecution  was  legally 
determined;  and  if  then-  be  no  evidence  of  the  fact,  it  is  not 
error  in  the  court  to  refuse  to  leave  it  to  the  jury  to  find  whether 
the  prosecution  was  determined.  Hardin  v.  Burden,  1  Ired., 
143. 

15.  In  an  action  for  malicious  prosecution,  those  facts  and  cir- 
cumstances, and  those  alone,  which  were  known  to  the  prosecu- 
tor at  the  time  he  instituted  the  prosecution,  are  to  be  consider- 
ed in  determining  whether  he  had  probable  cause.  Any  othts 
tacts,  which  may  be  established  on  the  trial,,  to  prove  the  inno- 


ACTION  ON  THE  CASE.— III.  10 

cence  of  the  person  accused,  are  irrelevant  to  the  question  of 
probable  cause-     Swaim    v.  Stafford,  3  Ired.,  289. 

16.  A  person  may  recover  damages,  in  an  action  on  the  case, 
for  a  malicious  prosecution  of  his  slave.  Locke  v.  Gribbs,  4 
Ired.,  42. 

17.  If  a  prosecutor,  on  a  charge  of  larceny,  have  reasonable 
ground,  at  the  time  he  institutes  the  prosecution,  to  believe  that 
his  goods  have  been  stolen,  he  is  not  liable  to  an  action  on  the 
case  for  a  malicious  prosecution,  though  he  may  have  discovered, 
after  the  prosecution  was  coninaenced,  that  his  goods  had  not, 
in  fart,  been  taken  out  of  his  possession,  but  had  been  accident- 
ally mislaid.     Swaim  v.  Stafford,  4  Ired.,  392. 

18.  A  search  by  a  store  keeper,  who  supposed  his  goods  to  have 
been  stolen,  for  the  purpose  of  ascertaining  whether  they  were 
missing,  need  only  be  such  as  might  reasonably  satisfy  him  of 
the  fact ;  as  the  law  does  not  require  the  utmost  diligence  in 
making  it.     Ibid. 

19.  The  mere  possession  by  one  person,  of  goods  supposed  to 
be  stolen  by  another,  would  not  afford  a  sufficient  probable 
cause  for  a  prosecution  against  the  former,  as  the  receiver  of 
stolen  floods,  when  no  enquiry  was  made  of  such  person,  and  no 
opportunity  was  given  to  him  to  explain  how  such  possession 
was  acquired.     Swaim  v.  Stafford,  4  Ired.,  398. 

20.  In  an  action  on  the  case  for  a  malicious  prosecution,  the 
want  of  probable  cause  does  not  necessarily  imply  malice  in  th« 
prosecutor,  so  as  to  authorize  the  judge  to  pronounce  that  this 
want  of  probable  cause  implied  such  malice.  And,  as  the  de- 
fendant in  the  action  may  prove  that  the  plaintiff  was  actually 
guilty  of  the  offence  charged,  so  may  he  also  prove  matter* 
showing  probable  cause,  though  he  did  not  know  them  at  the 
time  he  instituted  th"  prosecution.     Bell  v.  Pearcy,  5  Ired,  83. 

21.  The  right  to  recover  in  such  an  action  depends  upon  tho 
entire  innocence  of  the  plaintiff  and  malice  in  the  defendant. — 
Ibid. 

22.  Tn  an  action  for  malicious  prosecution,  where  probable 
cause  is  alleged,  it  is  the  duty  of  tie-  court  to  direct  the  jury, 
that  if  they  find  certain  facts  from  the  evidence,  or  draw  from 
them  certain  other  inferences  of  fact,  there  is  or  is  not  pro- 
bable cause,  thus  leaving  the  questions  of  fact  to  the  jury, 
and  keeping  their  effect  in  point  of  reason,  for  the  decision  of 
the  court  iis  a  matter  of  law.     Beale  v.  Boherson,  7  Ired.,  280. 

23.  In  an  action  Eor  a  malicious  prosecution,  it  is  sufficient,  in 
order  to  prove  the  prosecution  terminated,  to  show  that  the 
plaintiff  was  bound  to  appear  at  a  term  of  a  court  to  answer  a 
criminal  charge,  and  that  he  was  not  rebound.  Much  more  is 
it  so,  when  the  solicitor  makes  an  entry  on  the  docket,  that  he 
does  not  think  the  evidence  sufficient  to  convict.  Bice  v.  Pon- 
der. 7  Ired.  390. 


20  ACTION  ON  THE  CASK— III. 

24.  It  is  nota  sufficient  defence  to  an  action  for  a  malicious 
prosecution,  that  the  defendant  really  believed  the  plaintiff 
guilty  of  the  crime,  with  which  he  charged  him,  but  he  must 
prow  facts  and  circumstances,  which  wouldinduce  a  reasonable 
suspicion  of  the  guilt  in  the  minds  of  unprejudiced  and,  at 
least,  ordinarily  "intelligent  persons.     Und. 

25.  If  the  truth  of  the  charges  made  in  a  libel,  when  the 
libeller  has  been  prosecuted   for  it.  will  justify  him  in  bringing  . 
an  action  for  malicious  prosecution,  the  charges  ought  to  be 
proved  to  be  strictly  true  by  plain  and  full  evidence.     Johnston 
v  Lance,  7  Ired.  448. 

26.  It  is  no  objection  to  an  action  for  a  malicious  prosecution; 
that  the  party  was  arrested  under  a  warrant  having  no  seal; 
nor  is  it  necessary  in  such  an  action  to  show  that  the  name  of 
theperson,  who  commenced  the  prosecution,  was  endorsed  on  the 
bill  of  indictment  as  prosecutor.     Kline  v  Shvler,  <s  I  red.  4S4. 

27.  In  an  action  for  a  malicious  arrest  and  holding  to  hail, 
the  plaintiff  must  allege  and  prove  a  legal  determination  of  the 
original  action  before  the  commencement  of  his  suit.  Howell 
v  Edwards,  8  Ired.  516. 

28.  A  defendant,  in  an  action  for  a  malicious  prosecution,  is 
only  to  be  fixed  with  a  want  of  probable  cause,  by  what  he 
knows  when  he  commences  his  prosecution;  although  lie  is 
allowed,  to  protect  himself  by  any  facts,  which  he  is  afterwards 
able  to  prove,  which  show,  or  tend  to  show,  the  plaintiff's  guilt 
Johnson  v  Chambers,  1"  [red.  287. 

29.  The  dimissal  of  a  State's  warrant  by  a  magistrate  raises  a 
presumption  of  want  of  probable  cause,  but  not  of  malice;  and  as 
the  law  raises  no  presumption  ol  malice,  the  question  of  malice 
must  be  left  to  the  jury,  as  a  question  of  fact,  and  cannot  be 
decided  by  the  court.     Ibid. 

30.  In  an  action  for  malicious  prosecution,  the  plaintiff  must 
show  particular  malice  en  the  part  of  the  defendant  towards 
him;  and  this  may  be  proved  by  positive  testimony  of  threats 
or  expressions  of  ill  will,  used  by  the  defendant  in  reference  to 
the  plaintiff,  or  it  may  be  inferred  from  the  want  of  probable 
cause,  and  other  circumstances,  such  as  are  apt  to  engender 
angry  feelings.     Brooks  v  Jones,  11  Ired.  260. 

31.  In  an  action  for  malicious  prosecution,  where  it  appeared 
that  there  were  circumstances  of  a  suspicious  character  against 
the  defendant  in  the  prosecution  which  would  amount  to  proba- 
ble cause,  if  unexplained,  yet  if  these  we're  denied  and  satisfac- 
torily explained  to  the  prosecutor  before  he  commenced  the 
prosecution,  he  cannot  avail  himself  of  the  defence  of  probable 
cause.     Honeycut  v  Freeman,  13  Ired.  320. 

32.  Case  for  malicious  prosecution  may  be  maintained  where 
&  warrant  is  sued  out,  on  an  accusation  of  larceny,  from  a  justice. 


ACTION  OX  THE  CASE.— III.  21" 

although  it  is  not  placed  in  an  officer's  hands,  nor  further  pro- 
ceeded on.     Hdmes  v  Johnson,  Bush.  44. 

35.  Whether  certain  supposed  facts  constitute  probable  cause 
for  a  prosecution  is  a  question  oflaw,  to  be  decided  by  the  court 
and  not  by  the  jury.  It  is  the  duty  of  the  Judge,  leaving  it  to 
the  jurv  to  ascertain  the  existence  of  the  facts,  to  declare  what 
inference  as  to  probable  cause  results  therefrom;  and  it  is  error 
to  leave  such  inference  to  be  drawn  by  the  jury.  Viekers  v 
Logan,  Busb.  393. 

34.  In  an  action  for  a  malicious  arrest  in  a  civil  suit,  probable 
cause  is  a  question  for  the  court;  but  malice  is  a  matter  of  fact 
for  the  jurv,  which  may  he  interred  from  want  of  probable  cause. 
Bradley  v."  Morris,  Busb.  395. 

35.  In  an  action  on  the  case  for  wrongfully  suing  out  an 
attachment,  it  is  sufficient  to  show  a  want  of  probable  cause; 
for  this  being  a  civil  proceeding,  it  is  not  net  essary  to  shew  that 
the  defendant  was  actuated  by  malice  in  instituting  it.  Kirk- 
ham  v.  Coe,  1  Jones,  423. 

;>ti.  One  who  prosecutes  another  for  a  perjury  in  swearing  to 
an  immaterial  fact,  which  could  notamount  to  a  perjury,  cannot 
be  held  to  have  acted  under  a  probable  cause  of  suspicion,  even 
though  he  may  be  able  to  prove  the  falsity  of  the  oath.  Smith 
v.  Dbaver,  4  Jones  513. 

37.  Where  it  was  proved  that  a  forgery  had  been  committed 
in  a  note,  and  that  at  the  same  time,  and  in  the  same  ink,  and  by 
the  same  hand,  an  interlineation  had  been  made  in  a  justice's 
warrant  on  the  note,  and  on  a  trial  against  !>  for  the  forgery,  it 
was  proved  and  admitted  that  either  the  present  plaintiff  or  B 
had  admitted  the  forgery,  it  was  held  that  the  oath  of  the  plain- 
tiff, as  a  witness,  denying  that  the  interlineation  in  the  warrant 
was  in  his  handwriting,  was  material  to  the  issue  then  on  trial, 
ami  that  if  he  swore  falsely  in  that  respect,  it  was  perjury,  and 
he.  consequently,  could  not  maintain  an  action  for  malicious 
prosecution  against  the  defendant,  who  had  prosecuted  him  for 
the  perjury.     Smith  v.  Deaver,  6  Jbne,  5*63. 

38.  Where  an  action  was  brought  against  one  for  having  sued 
out  a  writ  against  the  plaintiff,  and,  upon  his  being  arrested, 
having  consented  that  the  sheriff  might  take  a  sum  of  monej 
from  him  in  lieu  of  hail,  it  was  held,  KShat  it  could  not  lie  consid- 
ed  in  any  other  light  than  an  action  for  a  malicious  arrest,  or 
malicious  prosecution,  in  which  the  termination  of  the  former 
suit  must  be  shown.     Heitrit  v.   IVboten,  7  Jones,  182. 

See  (  Evidence —  In  cases  of  malicious  prosecution  and  slandei 
1-2-3-4-.N-D-14-15-17-18)  (Trespass— To  persons  ami  personal, 
property,  when  it  will  lie — 11.) 


22  ACTION  ON  THE  CASE.— IV. 


IV.    FOR    SLANDER. 


1.  In  an  action  of  slander,  words  bear  that  signification  which 
they  have  in  common  parlance  ;  therefore  to  say  that  "one  has 
sworn  false  in  court,"  implies  that  he  has  committed  perjury, 
because  in  this  country  there  is  no  court  which  has  not  the 
power  to  administer  an  oath.  Hamilton  v  Bent,  1  Hay.  116, 
(135.) 

2.  Upon  the  pleas  of  the  general  issue  and  justification  in 
slander,  the  defendant  may  prove  in  mitigation  of  damages  the 
plaintiff's  bad  character,  but  he  shall  not  prove  any  particular- 
fact.      Vick  v  Whitfield,  2  Hay.  22'2,  (396:) 

3.  It  is  not  actionable  to  say  of  a  man  "lie,  one  of  our  little 
Chowan  justices  of  the  peace,  was  taken  up  a  few  nights  ago 
playing  cards  with  negro  Quomana  in  a  rookery  box,  and  com- 
mitted to  jail,  and  remained  there  until  next  day  nine  or  ten 
o'clock,  and  then  was  turned  out  and  split  for  the  country," 
when  it  is  not  charged  in  the  declaration  that  the  plaintiff  was 
a  justice,  or  that  the  words  were  spoken  of  him  in  relation  to 
his  office.     McGuire  v.  Blair,  2  Car.  L.  R.  443,  (32S.) 

4.  It  teas  held  not  actionable  to  say  of  the  plaintiff  that  he 
had  sworn  to  a  lie,  "in  obtaining  a  warrant  from  a  justice  re- 
specting a  deer,"  because  it  appeared  that  the  justice  had  no 
jurisdiction  of  the  offence,  and  therefore  perjury  could  not  be 
committed  in  taking  the  oath.  Boling  v  Luther,  N.  C.  Term  R. 
202,  (635.) 

5.  If  the  libellous  scatter  in  a  production  be  not  direct,  but 
only  libellous  by  (division  or  reference,  the  fact  understood  must 
be  stated  by  introduction,  and  must  be  pointed  at  by  explanatory 
inuendoes.     States  Neese,  N.  C.  Term,  R.  270,  (601.") 

6.  In  an  action  of  slander,  the  proof  of  speaking  the  words 
osKast  correspond,  in  substance,  at  least,  with  the  charge  in  the 
declaration.  Hence  a  declaration,  averring  a  charge  of  an  in- 
famous offence,  is  not  supported  by  proof  that  the  defendant 
said  that  there  was  sucB  a  report,  but  he  had  great  difficulty  in 
believing  it.     Hmion-v.  Reams,  2  Murpa.,  380. 

7.  Wfeere  the  defendant  charged  the  plaintiff  with  having 
stolen  a  note  from  him  in  Virginia,  where  it  was  proved  the 
stealing  of  notes  was;,,  by  law,  a  larceny  at  the  time  to  which 
the  charge  referred  ;  it  was  held,  that  the  wpriis  were  actiona- 
ble, for  though  the  ofeMice  of  stealing  in  Virginia  was  hot  pun- 
ishable in  this  State,  the  effect  of  such  an  imputation  will  fol- 
low a  man  wherever  he;  goes,  and  the  gravamen  of  the  action  is 
the  social  degradation.     ISMpp  v.  McCraw,  3  Murph.,  463. 

8.  In  a  charge  of  forswearing,  unless  it  appear  from  the  ac- 
companying words,  that  a  judicial  forswearing  was  meant,  the 
plaintiff  must  show  upon  the  record,  that  the  defendant  alluded 
U>  some  particular  forswearing,   which  amounted  to  perjury.—- 


ACTION  ON  THE  CASE.— IV.  23 

Therefore,  where  the  plaintiff  charged  in  his  declaration,  that 
the  defendant  said  of  him,  "he  swore  a  lie,  and  I  can  prove  it," 
and  there  was  no  colloquium  set  forth,  of  any  judicial  proceeding, 
the  plaintiff  •was  non-snited.     Brownv  v.  Diila,  3  Mnrph.,  574. 

9.  Though  from  the  publication  of  a  libel,  unexplained,  malice 
will  be  prima  facie  implied,  yet  as  the  act  may  be  innocent  and 
in  some  cases  justifiable,  the  circumstances,  under  which  it  was 
done,  should  be  left  to  a  jury.     Erwin  v.  Sumroio,  1  Hawks,  472. 

10.  Words  to  be  actionable  per  se,  must,  impute  some  crime 
punishable  capitally,  or  an  infamous  offence,  by f  the  common, 
as  distinguished  from  the  ecclesiastical,  law;  and  not  merely  im- 
pute an  imperfect  sense  or  practice  of  moral  duty,  virtue  or  obliga- 
tion; hence,  it  icas  held,  not  to  be  actionable  to  say  of  a  man:  "1 
Shave  said  he  was  the  father  of  his  sister's  child,  and  I  say  so 
again,  and  I  still  believe  he  was."     Eiirc  v.  Odom,  2  Hawks,  52. 

11.  In  an  action  for  slander,  in  charging  the  plaintiff  with 
perjury,  defendant  is  not 'bound,  in  support  of  his  plea  of  justifi- 
cation, to  produce  such  evidence  as  would  convict  the  plaintiff, 
if  he  were  on  trial  for  the  offence.  Kincade  v.  Bradshaw,  3 
Hawks.  63. 

12.  Words,  in  order  to  be  slanderous,  must  lie  spoken  with  an 
intent  to  slander,  ami  must  be  so  understood  by  the  hearers.- — 
Stoddard  v.  Linville,  3  Hawks,  474. 

13.  To  say  of  a  plaintiff  that  he  has  forged.a  letter  in  defend- 
ant's name,  containing  this  clause,  "  I  have  to  inform  you  that 
I  have  received  your  money,  and  want  you  to  come  and  receive 
it,"  is  slanderous,  because  it  is  a  forgery  at  common  law  to  count- 
erfeit any  writing  with  a  fraudulent  intent,  whereby  another 
person  may  be  prejudiced     Ricks  v.  Cocqxr,  3  Hawks,  587. 

14.  It  is  not  actionable  to  charge  a  man  with  burning  an  out- 
liouse,  not  parcel  of  the  dwelling  house,  because  the  words  do 
not  impute  to  him  a  felony  or  other  crime,  the  punishment  of 
which  is  infamous.     Brady  v.   Wilsofi,  4  Hawks,  93. 

15.  In  slander,  the  defendant  may  prove  a  general  report  of 
the  truth  of  the  words  spoken,  in  mitigation  of  damages,  but  not 
in  justification.     Nelson  v.  Evans,  1  Dev.,  9. 

16.  A  count,  charging  a  defendant  with  speaking  slanderous 
words,  is  .not  supported  by  proof  that  he  maliciously  procured 
another  to  speak  them.      ITatts  v.  Greenlee,  1  Dev.,  210. 

17.  In  a  declaration  for  slander,  the  office  of  an  inuendo  is  to 
connect  words,  not  in  themselves  actionable,  with  some  prece- 
dent fact  formally  averred,  winch  explains  their  meaning.  JJ'atts 
w.  Greenlee,  2  Dev.,  115. 

18.  Words,  not  in  themselves  actionable,  cannot  be  rendered 
so  by  an  inuendo,  without  a  prefatory  averment  of  extrinsic  facte, 
which  explains  their  meaning,  and  makes  them  slanderous  ; 
hence,  where  the  words  were  "  all  Watt's  girls  are  big,"  and  the 
declaration  contained  no  averment  of  a  fact,  affixing  a  slander- 
ous meaning  to  the  wards,  an  inuendo  affirming  the  meaning  te 


24  ACTION  ON  THE  CASE.— IV. 

be  "  big  with  child  to  negro  B,"  was  held  to  be  insufficient,  and 
the  declaration  defective.     Ibid. 

19.  The  word  "publish,'-  is  sufficient,  in  a  declaration  for  slan- 
der, without  charging  the  words  to  be  spoken  in  the  presence  and 
hearing  of  others.     Ibid. 

20.  The  act  of  1808  has  given  a  precise  meaning  to  the  term 
"incontinent,"  and  having  rendered  a  charge  of  it  against  a  wo- 
man actionable,  a  count,  charging  the  defendant  with  saying  the 
plaintiff  is  "  incontinent,"  is  good  without  prefatory  matter,  or 
an  inuendo.     Ibid. 

21.  In  a  declaration  for  slander,  the  inuendo  must  contain  a 
rational  inference  from  the  colloquium,  or  other  introductory  mat- 
ter. The  colloquium  and  introductory  matter  are  put  upon,  the 
record,  that  the  court  may  see  if  the  jury  have  made  a  reasona- 
ble construction  of  the  words.     Brittain  v.  Allen,  i  Dev.,  120. 

22.  The  usual  and  formal  mode  of  pleading  is,  first,  to  set 
forth  the  colloquium,  then  the  ■words,  and  deducing  a  slanderous 
meaning  from  them  by  a  proper  inuendo:  but  a  declaration,  in 
which  the  words  spoken  and  the  inuendo  were  first  set  forth, 
and  then  a  fact  to  warrant  the  inuendo,  was  held  sufficient. — 
Ibid. 

23.  The  words  "he  has  stolen  my  bee  tree,"  refer  to  the  tree,  and 
nottothe  bees  orrhoney.;  if  referring  to  the  latter,  theymighthave 
been  actionable,. as  a  qualified  property  in  bees  and  honey  exists 
in  the  owner  of  the  soil,  whereon  they  are  found;  but  if  the 
tree,  and  a  standing  tree,  is  meant,  they  are  not  actionable;  and 
the  word  "tree,"  without  explanation,  ex  vi  termini  means  a. 
standing  tree.     Idol  v  Jones;  2  Dev.  162. 

24.  The  words  "  he  was  a  rogue,  and  kept  at  home  a  rogue 
hole,  and  harbored  rogues  "  are  not  actionable.     Ibid. 

25.  Words  which  do  not  in  themselves  import  a  slanderous 
meaning  must,  in  declaring  on  them  as  slanderous,  be  rendered 
so  by  inuendo,  connected  with  an  averment  that  they  were  spoken 
of  the  plaintiff.  But  if  the  words  are  of  themselves  slanderous, 
it  is  only  necessary  to  aver  that  they  were  spoken  of  the  plain- 
tiff.    Brittain  v  AUen.  3  Dev.  16T. 

26.  In  actions  of  slander,  the  quantum  of  malice  is  material 
in  estimating  the  damages,  and1  to  establish  that,  evidence  is 
admissible  of  words  spoken  by  the  defendant,  not  declared  on;, 
but  the  jury  should  be  instructed  as  to  the  purpose  for  which 
the  evidence  is  introduced.      Ibid. 

27.  The  repetition  of  a  slanderous  report  is  actionable,  and 
the  defendant  cannot  justify  by  proving  the  existence  of  the  re- 
port, without  also  proving  it  to  be  true..  Hampton  v  Wilson  4 
Dev.  468. 

28.  The  rule  that  one,  who  repeats  a  slanderous  report,  and 
gives  the  name  of  his  author,  may  justify  by  pleading  that  fact. 
Etas  been  doubted,  and  must  depend  upon, the.  intent,  with  which 


■      ACTION  ON  THE  CASE.— IV.  25- 

the  report  and  the  name  of  the  author  are  mentioned.     It  seems 
that  it  does  not  obtain  in  actions  for  libel.     Ibid. 

2!).  In  an  action  for  slander,  where  the  words  contain  an  im- 
putation of  murder,  the  plaintiff  may  be  entitled  to  recover,, 
although  the  defendant  should  prove  that  the  person  alleged  to 
be  dead  is  still  alive,  if  these,  in  whose  presence  the  words  were 
spoken,  had  well  grounded  reasons  to  believe  that  he  was  then 
dead.     Sugart  v  Garter,  1  Dev.  &  Bat.,  8. 

30.  In  actions  for  plander,  it  is  not  admissible  to  prove  in  mit- 
igation of  damages,  that  previous  to  speaking  the  words,  the 
plaintiff  was  in  the  habit  of  vilifying  and  abusing  the  defendant. 
Goodbreadv  Ledbetter,  1  Dev.  &  Bat.  12. 

31.  Evidence  of  the  plaintiff's  general  bad  character  is  admis- 
sible in  mitigation  of  damages,  in  an  action  of  slander,  and  it 
may  be  given  under  the  plea  of  the  general  issue.     Ibid. 

32.  To  charge  a  man  with  harboring  a  runaway  slave  is  not 
actionable,  without  proof  of  special  damage,  although  for  such 
offence  he  might,  if  guilty,  be  indicted,  and  upon  conviction  be 
fined  and  imprisoned.  The  charge,  to  sustain  an  action,  must 
impute  an  offence  to  which  is  annexed  an  infamous  punishment, 
a  punishment  which  involves  social  degradation,  by  causing  the 
loss  of  th&:libera  lex.     Skinner  v  White,  1  Dev.  &  Bat.  471. 

33.  In  .dander,  the  words  are  to  be  taken  in  their  ordinary 
acceptation  among  those,  in  whoso  presence  they  are  uttered. — 
Hamilton  v  Smith,  2  Dev.  &  Bat.  274. 

34.  In  an  action  of  slander,  in  which  the  defendant  is  charged 
with  having  imputed  perjury  to  the  plaintiff,  the  plea  of  justifi- 
cation is  not  sustained,  if  the  jury  are  satisfied  that  the  plaintiff 
was  honestly  mistaken  in  what  lie  swore  to.  In  such  an  action, 
the  plea  of  justification  must  contain  all  the  averments,  which, 
if  true,  constitute  the  crime  of  perjury.  Jenkins  v  Cockerham,  1 
Ired.  309. 

35.  Where  a  man  utters  slanderous  words  of  another,  and  at 
the  same  times  avers  that  he  can  prove  the  truth  by  a  third  per- 
son, whom  he  names,  this  last  averment  is  no  mitigation,  but 
rather  an  aggravation  of  the  slanderous  charge  and  tends  to 
prove  malignity  in  the  speaker.     James  v  Clarke,  1  Ired.  3,'.>7. 

36.  Calling-  one  a  thief  or  a  murderer,  in  the  absence  of  con- 
text or  ofproof  to  the  contrary,  on  the  trial,. ex  vi  termini  imputes 
to  him  a  felony,  and  therefore  an  action  of  slander  lies  for  such 
words.     Dudley  v  Robinson,  2  Ired.  141. 

37.  The  words  "which  amount  to  a  charge  of  incontinency," 
and  for  which  an  action  ol  slander  is  given  to  a  woman,  by  the 
act  of  1808,  mustimport  not  only  a  lascivious  disposition,  but 
the  criminal  act  of  fornication  or  adultery.  Thus,  to  say  of  a 
woman  that  "she  was  kept  by  a  man  "  is  actionable  as  a  slander 
under  the  act,  McBrayer  v 'BaU,  4  Ired.  136;  (See  Rev.  Code, 
ch.  106.) 


26  ACTION  ON  THE  CASE.— IV. 

38.  He  who  repeats  a  slander,  without  giving  his  author,  or, 
if  he  give  the  author,  with  a  malicious  intent,  is  himself  liable 
to  an  action  for  the  slander.     Ibid. 

39.  To  charge  a  man  with  having  stolen  bank  notes  in  South 
Carolina  is  not  actionable  in  this  State,  unless  it  be  shown  by 
Jtroqf  that,  by  the  laws  of  South  Carolina,  such  stealing  is  sub- 
ject to  an  infamous  punishment.  No  such  presumption  can  be 
made  by  the  court,  as  by  the  common  law  the  stealing  of  bank 
notes  was  not  indictable,  nor  was  it  so  in  this  State  until  made 
so  by  statute.      Wall  v  Hoskins,  5  Ired.  177. 

40.  Where  in  speaking  of  a  trial  before  a  justice,  in  which  the 
plaintiff  had  been  a  witness,  the  defendant  said  that  "  he  (the 
plaintiff')  had  sworn  falsely,"  these  words  import  that  the  plain- 
tiff had  committed  perjury,  and  are  in  themselves  actionable. — 
Bernhardt  v  Potts,Tl  Ired.  403. 

41.  Where  one  repeats  an.  oral  slander  and  gives  the  name  of 
his  informant,  he,  is  justified  or  not,  according  to  the  quo  aninio 
with  which  the  charge  ;is  repeated  ;and  propugated.  Johnston  v 
Lanee,  7  Ired.  4^8. 

42.  In  the  case*  of  a\written  libel,  iShe  mention  of  the  name  of 
the  author,  or  the  general  rumor,  of  the  libellous  matter,  will 
not  excuse  or  jnstify;the  publication  of  such  matter  even  if  the 
author  or  the  rumor  be;  distinctly  proved.     Ibid. 

43.  Where  a; person  -charges  another  with  perjury  and  is  sued 
in  an  action  for  the  slander,  it  is  not  sufficient  for  the  defendant 
to  prove  simply  that  what  the  plaintiff  swore  was  false,  but  he 
must  convince  the  jury  by  his  proof  that  the  false  oath  was 
taken  corruptly.      Chandler  v  Robinson,"  Ired.  480. 

44.  In  an  action  of  -slander,  charging  that  the  defendant. 
.  speaking  of  a  particular  suit,   affirmed  that  the  plaintiff  "  had 

sworn  to  a  lie,"  the  particular  evidence  given  by  the  plaintiff  on 
.the  trial  of  the  suit  is  never  set  forth  in  the  declaration,  and 
therefore  need  not  be  proved.  But  if  the  defendant  had,  in 
speaking  the  words,  gone  on  to  specify  the  matters  testified  by 
the  plaintiff,  and  the  point  on  which  he  had  sworn  falsely,  then 
it  would  have  been  incumbent  on  the  plaintiff  to  have  set  forth 
the  whole  truly  in  his  declaration,  and  if  upon  the  whole,  thus 
stated  and  proved,  the  matter,  to  which  the  alleged  false  oath 
related,  appeared  to  be  immaterial,  the  action  could  not  be  main- 
tained.    Smith  v.  Smith,  8  Ired.  29. 

45.  In  actions  of  slander,  evidence  of  the  truth  of  words 
spoken  cannot  be  received  under  the  general  issue,  even  in  mit- 
igation of  damages  ;  though  evidence  of  general  bad  character 
may  be  so  received.     Ibid. 

46.  Where  slanderous  words  are  uttered,  the  law  prima  facie 
implies  malice,  except  in  the  case  of  a  privileged  communica- 
tion, which  is,  where  the  party  is  acting  under  a  duty,  either 
legal  or  moral,  towards  the  person  to  whom  he  makes  the  com- 


ACTION  ON  THE  CASE.— IV.  27 

munication.  In  such  a  case,  malice  must  be  proved  by  the 
plaintiff,  and  it  is  a  question  of  fact  for  the  jury.  Adcock  v. 
Marsh,  8  Ired.  360. 

47.  A  charged  B  with  perjury,  in  swearing  before  a  justice 
to  the  following  affidavit:  "  A  has  a  certain  cow  in  his  possess- 
ion, that  belongs  to  him  and  said  B;  and  the  description  is  red 
sides,  with  some  spots,  and  unmarked:"  it  was  held,  that  the 
words  were  not  actionable  in  themselves,  as  the  declaration  did 
not  aver,  nor  the  proof  show,  that  the  oath  was  taken  in  a  pro- 
ceeding, in  which  an  oath  could  be  judicially  administered. — 
gtuderv.   Wilson,  10  Ired.,  92. 

48.  Where  the  plaintiff  had  been  constable  in  1843,  and  again 
in  184fi,  and  during  the  latter  year,  the  defendant  said  of  him, 
that  while  he  was  constable  in  1843  Vie  had  made  a  false  return; 
it  was  held  that  he  could  not  maintain  an  action  of  slander  for 
those  words,  unless  he  alleged  and  proved  some  special  damage. 
Edwards  v.  Howell,  10  Eeed.  211. 

49.  Words  slandering  a  man,  as  to  his  conduct  in  office,  pro- 
fession, &c,  from  which  the  law  necessarily  implies  damage, 
must  relate  to  the  office.  lie.,  in  which  the  person  slandered  was 
engaged  at  the  time  of  the  speaking- ©f  the  words.      Ibid. 

50.  In  an  action  of  slander,  when  the  charge  is  made  by  using 
a  cant  phrase  or  a  nickname,  or  when  advantage  is  taken  of  a 
fact,  known  to  the  persons  spoken  to.  in  order  to  convey  a 
meaning,  which  they  understood  by  connecting  the  words  (of 
themselves  unmeaning^  with  such  fact,  the  plaintiff  is  obliged  to 
make  an  averment  of  the  meaning  of  such  cant  phrase  or  nick- 
name, or  of  the  existence  of  such  collateral  fact,  for  the  purpose 
of  giving  point  to  the  words,  and  of  showing  that  the  defendant 
meant  to  make  the  charge  complained  of;  and,  in  such  cases, 
there  must  also  be  an  averment,  that  the  words  were  so  under- 
stood by  the  persons  to  whom-they  were  addressed.  These  avcr- 
ments  ai-e  traversable,  and  must  be  proved,  differing  entirely 
from  what  are  called  inuendoes,  which  need  no  proof.  Briggs  v. 
Byrd,  11  Ired.,  353. 

51.  In  an  action  of  slander,  tinder  the  statute. 'for  charging  that 
the  plaintiff  had  a  criminal  intercourse  with  one  A,  at  a  particu- 
lar time  and  place,  the  defendant  cannot  justify  by  showingthat 
she  had  such  intercourse  with  A  at  another  time  and  place. — 
Sharpev.  Stephenson,  12  [red.,  .'lbs. 

52.  The  defendant,  in  such  an  action,  in  a  pka  of  justification 
must  aver  and  prove  the  identical  offence:  and  when  any  cir- 
cumstance is  stated,  which  is  descriptive  of  and  identifies  the 
offence,  it  must  be  averred  and  proved,  for  the  purpose  of  showing 
that  it  is  the  same  offence.  The  plea  however  is  not  favored; 
but  when  other  descriptive  circumstances  are1  proved,  so  as  to 
show  clearly  that  it  is  the  offence  charged,  a  slight  variation  in 
.some  of  the  circumstances,  which  -may  be  ascribed  to  mistake, 


-28  ACTION  OX  THE  CASE.— IV 

would  not  be  fatal,  as,  for  instance  that  it  was  Saturday  instead 
of  Sunday,  aud  the  like.     Ibid. 

53.  A  person  is  not  answerable,  in  an  action  of  slander,  for 
anything  he  s&ys  in  honestly  preferring,  before  a  judicial  officer, 
complaints  against  an  individual  for  offences  alleged  to  have 
been  committed  by  him;  and  prima  facie  every  application  is  to 
be  deemed  honest,  and  to  have  been  made  upon  good  motives, 
until  the  contrary  be  shown.     Briggs  v.  Byrd,  12  Ired.,  377. 

54.  In  such  cases,  whether  the  party  "complaining  acted  bona 
fiih'.  or  from  a  wicked  and  malicious  mind,  is  always  an  open 
question.  The  opposite  party  is,  therefore,  at  liberty  to  prove 
malice  either  by  express  evidence,  ©r  by  attending  or  collateral 
circumstances.     Ibid. 

55.  In  an  action  of  slander,  evidence  of  the  sense  in  which 
the  words  were  understood  by  the  hearers,  must  he  of  the  sense 
in  which  they  were  understood,  at  the  time  they  were  uttered. 
Ibid. 

56.  In  an  action  of  slander  where  the  words  proved  are  not 
actional ile  in  themselves^  they  cannot  be  made  so  by  the  aid  of 
other  words,  spoken  at  a  different  time  and  place,  which  are 
barred  by  the  statute  of  limitations.     Jonesv.  June*.  1  -Tones,  495. 

57.  In  an  action  of  slander,  for  charging  the  plaintiff  with 
murder,  the  same  cogency  of  proof  is -not  necessary  in   support 
of  the  plea  of  justification,  as  would  be  required  to  coiawiet  the 
plaintiff,  if  he  were  on  trial  for  the  imputed  capital  offence. — 
Barfield  v.  Britt,  2  Jones,  41. 

5.S.  A  master,  who  is  acting  as  counsel  for  his  slave;  on  a  trial 
of  the  slave  before  a  competent  tribunal,  is  not  liable  in  an  ac- 
tion of  slander,  for  any  words  spoken  of  one  of  the  witnesses, 
which  are  material  and  'pertinent  to  the  issue.  Shelferv.  Good- 
iiuj.  2  Jones,  175. 

59.  In  an  action  for  words  spokeu,  charging  the  plaintiff  with 
the  crime  of  bestiality,  it  is  not  necessary  for  him  to  aver  and 
prove  that  he  was  old  enough  to  be  able  to  commit  the  crime. 
Chambers  v.  White,  2  Jones,  383. 

(iO.  Where  words,  which  were  alleged  to  contain  a  charge  .of 
perjury,  could  only  be  made  to  convey  that  idea  by  reference  to 
a  swearing  in  a  suit  in  court,  ami  it  appeared  that  the  plaintiff 
was  not  sworn  at  all  in  that  suit,  and  that  the  oath  which  he 
did  take,  and  to  which  only  the  words  spoken  were  applicable,-, 
was  extrajudicial,  it  was  held  that  an  action  for  slander  would 
aot  lie.     Mvlmiic  v.  iSeUars,  3  Jones,  199. 

61.  Where, in  an  action  for  defamation,  it  appears  that  the  de- 
fendant had  a  right  to>  make  a  privileged  communication,  if  in 
professing  to  do  so  he  state  what  is  false,  the  inference  of  malice 
is.against  him.  and  it  is  incumbent  on  him  to  show  that  he  acted 
liona  fide  to  the  best  of  his  information  and  belief,  in  making 
1   communication.      Wakefield  v.  Smithwick,  4  Jones,  327. 


\(   HON  OX  THE  CASE.— IV.  29 

ii2.  Where  tke  words  charged  as  a  slander  were,  "that  the 
plaintiff  had  sworn  falselyin  a  trial  before  a  justice  of  the  peace, 
■us  to  an  account  in  his  favor  against  the  defendant;"  it  was  held 
that  the  plaintiff  was  not  bound  to  show  that  the  person,  who 
acted  as  a  justice  on  the  trial  referred  to,  had  been  duly  commis- 
sioned as  such.     Pitgh  v.  Need,  4  Jones,  367. 

63.  A  letter,  written  and  sent  to  the  plaintiff,  charging  him 
with  "trying  to  defraud  the  defendant  for  a  long  tune,  and 
with  having  done  so,  as  much  as  lav  in  his  power"  and  contain- 
ing, besides,  angry  and  threatening  language,  and  forbidding  all 
intercourse  between  them,  was  held  proper  to  be  submitted  to 
the  jury  to  determine  whether  the  language  was  intended  in  a 
sense  injurious  to  the  plaintiff  and  the  court  had  no  right  to  as- 
sume on  the  trial,  that  the  writing  was  not  a  libel.  Simmon*  v. 
Morse,  i>  .lonos,  6. 

64.  Words,  which  impute  to  a  female  a  wanton  and  Iacivions 
disposition  only,  are  not  actionable.  Lucas  v.  Nichols,  7 
Jones,  32. 

65.  Words  of  doubtful  import,  one  sense  of  which  may  how- 
ever he  considered  slanderous,  may  probably  be  left  to  the  jury 
to  determine  in  what  sense  they  were  meant.     Ibid. 

(iii.  Words,  spoken  after  action  brought,  cannot  aid  doubtful 
or  ambiguous  words,  so  as  to  make  them  slanderous.     II     . 

67.  A  declaration  in  an  action  of  slander,  charging  the  slan- 
derous words  as  having  been  spoken  affirmatively,  will  uol  In- 
supported  by  proof  that  the  words  were  spoken  interrogatively' 
King  v.   Whitley,  7  -lours.  529. 

68.  Where  the  words  charged  in  a  declaration  as  slanderous 
have  a  fixed  and  unambigoou  ..-.  it  is  not  competent  for 
a  witness  to  say  that  he  understood  the  speal  an  differ- 
ently from  the  common  import  of  such  words.  Pitts  v.  Pace,  7 
Jones,  558. 

69.  The  words,  "  Von  as  good  as  stole  the  canoe  of  J  H,"  are 
not  actionable,  per  se.     Stokes  v.  An  y,  8  Jones,  66. 

70.  It  is  not  actionable,  without  showing  special  damage,  to 
charge  a  white  man  with  being  a  free  negro;  and  it  does  not 
alter  the  ease  that  such  man  was  a  minister  of  the  <  iospel. — 
McDowell  v.  Bowles,  8  Jones,  184. 

71.  In  a  declaration  for  slander,  in  charging  the  plaintiff  with 
perjury  in  another  State,  it  must  be  averred  and  proved,  that  by 
the  laws  of  such  State  perjury  is  an  offense,  to  which  is  annexed 
an  infamous  punishment.     Sparrow  v.  Maynard.  8  Jones,  195. 

72.  An  attempt  to  commit  a  felony  is  only  a  misdemeanqr, 
and  a  charge  of  such  an  attempt  is  not  actionable, per  se.  Wil- 
son v.  Tatum,  s  Jones,  300. 

See  (Costs — In  civil  proceedings;  when  the  defendant  pays 
costs,  !•  ;)  (Damages-^-By  what  rule  to  he  assessed^  16;)  (Dam- 
ages— What  will  increase  or  mitigate  damages.  9;)  (Evidence — 


30  ACTION  ON  THE  CASE.— IV- V. 

In  cases  of  malicious  prosecution  and  slander,  5-6-7-10-11-12- 
13-15-1(5-19-20-21-22-23-24;; 

V.       WHEN   THE    ACTIOS    WILfc,.  OB   WILL   NOTr  LIE   IN    OTHER   CASES. 

1.  If  one  induce  a  slave,  who  is  a  ferryman,  to  take  too  heavy 
a  load  into  his  boat,  whereby  the  slave' is  drowned,  the  owner 
shall  have  case  against  the  person  and!  his  executors.  Spivy  v. 
Farmer,  2  Hay  339,  (519.) 

2.  The  hirer  of  a  slave  is  not  responsible  for  his  loss,  though 
killed  while  in  the  hirer's  service,  if  he  used  ordinary  care  and 
attention,  such  as  a  prudent  man  would  afford  to  his  own  pro- 
perty.     Williams  v.  Holcombe,  1  Car.  R.  L.  365,  (33.) 

3.  Case  is  the  proper  action  to  recover  damages  against  th»- 
hirer  of  a  slave  for  a  year,  who  placed  him,  without  the  consent 
of  the  owner,  in  the  employment  of  a  person,  who  cruelly  beat 
him  and  greatly  impaired  bis  value.  Goioen  v.  Chapen,  2 
Murph.  61. 

4.  When  a  slave  is  hired,  and  killed  during  his  term  of  hiring, 
case  is  the  proper  remedy  for  the  owner.,  against  the  slayer. — 
Billiard  v.  Dortch,  3  Hawks,  246.  _ 

5.  When  a  house  under  a  lease  is  pulled  down  by. a  trespasser,. 
during  the  term,  the  owner  can  maintain)  case  for  the  injury  to 
the  freehold,  and  is  in  law  entitled  to  recover  damages,  th« 
amount  of  which  must  depend  upon  the  circumstances  of  tha 
case.     Oft  v.  Grice,  4  Dev.  477. 

6.  Where  one  person  carried  on  a  suit  in  the  name  of  another, 
without,  or  against  his  consent,  whereby  the  latter  was  compel- 
led to  pay  costs,  he  may  maintain  an  action  on  the  case  against 
the  former,  to  recover  damages  for  the  injury  he  has  thus  sus- 
tained.    Metcalf  v.  Alley,  2  Ired.  38. 

7.  Where,  in  an  action  on  the  case  against  a  railroad  company, 
for  damage  caused  by  their  negligence,  the  plaintiff  shows 
damage  resulting  from  the  act  of  the  company,  which  act,  with 
the  exercise  of  proper  care,  does  not  ordinarily  produce  injury, 
he  makes  out  a  prirnafaeie  case  of  negligence  sufficient  to  en- 
title him  to  recover,  unless  the  company  prove  that  they  had 
used  proper  care,  or  prove  some  extraordinary  accident  which 
rendered  care  useless,  EUisv.  the  Portsmouth  &  Roanoke  Hail- 
road  Company,  2  Ired.,  138. 

8.  If  in  the  prosecution  of  a  lawful  employment,  a  pure  acci- 
dent occurs,  no  action  can  be  supported  for  an  injury  arising 
therefrom;  but  it  ig3>th«erwise  where  any  Mime  or  carelessnejss 
is  attributable.  Garris  v.  Portsmouth  and  Roanoke  Railroad,  2 
Ired.,  324. 

9.  Where  the  engine,  running  on  the  railroad  tract,  killed  a 
eteer  under  such  circumstances  as  showed  that   the  killing  was- 


ACTION  ON  THE  CASE.— V.  31 

accidental,  it  was  held,  that  the  company  was  not  responsible  for 
the  loss.     Iliid. 

10.  The  act,  giving  jurisdiction  to  a  justice  in  cases  of  stock 
killed  on  a  railroad,  does  not  alter  the  rules  of  the  common  law 
in  relation  to  such  injuries.  Ibid.  (See  Eev.  Code,  ch.  17, 
Bee.  7.) 

(The  killing  is  now  made  prima  fade  evidence  of  negligence, 
provided  the  suit  is  brought  within  six  months  after  the  cause 
of  action  accrued.     See  Act  of  1856,  ch  7.) 

11.  A  plaintiff  has  a  right  to  recover  damages,  in  an  action  en 
the  case,  for  an  injury  done  by  a  defendant  to  his  slave  while 
hired  out,  if  the  injury  were  unjustifiable  and  were  of  such  a 
nature  as  impaired  the  value  of  the  slave  after  the  time  of  hiring 
had  expired.     Copeland  v.  Parker,  3  Ired.,  513. 

12.  An  overseer,  from  whom  a  slave  is  retreating  against  his 
orders,  has  no  right  to  shoot  him  for  the  purpose  of  stopping 
him.     Ibid. 

13.  An  action  on  the  case  in  for^will  lie  against  a  corporation. 
Mearex  v.  Commissioners  of  Wilmington,  9  Ired.,  73. 

14.  An  action  on  the  case  will  not  lie,  by  A  against  B,  for  bring- 
ing a  covenous  action  against  a  third  person  for  a  penalty,  incurred 
under  a  statute,  and  which  belongs  to  any  one  who  w.ll  sue  for 
it.  it  being  B's  intention  by  his  .recovery  in  the  action  for 
the  penalty,  to  prevent  any  other  recov  ry,  and  that  big 
own  recovery  should  accrue  to  the  benefit  of  such  third  per- 
son. If  there  be  any  redress  for  such  covenous  recovery,,  it  is  a 
public  one,  to  be  proceeded  against  by  indictment  for  a  misde- 
meanor.    Burnet  v.  Davidson,  10  Ired.,  it-t. 

15.  The  law  does  not  necessarily  imply  negligence  where 
damage  is  done,  so  as  to  sustain  an  action  on  the  case.  But 
where  the  plaintiff  shows  damage  resulting  from  the  act  of  the 
defendant,  which  act,  with  the  exertion  of  proper  '/are,  does  not 
ordinarily  produce  damage,  he  makes  eut  a  prima  facie  case  of 
negligence,  which  cannot  be  repelled,  but  by  proof  of  care,  or 
some  extraordinary  accident  which  makes  care  useless.  Her- 
ring v.  Wilmington  and  Raleigh  Railroad  Company,  10  Ired.,  402. 

16.  What  amounts  to  negligence,  is  a  question  of  law.     Ibid 

17.  In  an  action  on  the  case  against  ai  JKailroad  Company,  for 
the  negligence  of  their  agent  in  cunning  over  and  killing,  a 
slave,  where  it  appeared  that  the  slave  was  asleep  on  the  tract, 
that  the  cars  were  going  with  their  usual  speed  and  at  the  usual 
hour,  and  the  engineer,  when  within  a  short  distance  of  the- 
slave,  attempted  to  stop  the  engine  by  letting  oft"  the  steam  and 
reversing  the  wheels;  it  was  held  not  to  be  a  case  of  negligence 
to  subject  the  company  to  damages.     Ibid. 

18.  An  action  on  the  case  will  lie  in  favor  of  a  husband, 
against  one  who  entices  away  his  wife.  Barbee  v.  Armstead,  10. 
Ired..  530. 


32  ACTION  ON  THE  CASE—  V. 

19.  Where  an  action  on  the  case  for  damages  is  brought,  or- 
dinary care,  reasonable  time  and  probable  cause,  the  facts  being' 
established  or  proved,  are  questions  of  law  to  be  decided  by  the 
court.     Biles  v.  Holmes,  11  Ired.,  16. 

20.  An  action  on  the  case  will  lie  for  an  injury  done  by  an 
animal  when  his  owner  knows,  or  has  good  reason  to  believe, 
that  he  is  likely  to  do  mischief;  and  it  makes  no  difference 
whether  the  ground  of  suspicion  arises  from  one  act  or  from  re- 
peated acts.  The  act  done,  however,  must  lie  such  as  to  furnish 
S,  reasonable  inference,  that  the  animal  is  likely  to  commit  an 
act  of  the  kind  complained  of;  and  this  is  a  matter  of  fact  to  be 
decided  by  the  jury,  and  not  by  the  court.  CockerJiam  v.  Nixon, 
11  Ired.,  26a 

21.  In  an  action  on  the  case  for  the  loss  of  a  slave,  whose 
death  was  alleged  to  have  been  caused  by  ;i  want  of  due  care, 
the  degree  of  care,  to  be  taken  of  him,  does  not  differ  from  that 
required  as  to  other  things.  Heathcock  v.  Penninqton,  11  Ired. 
640.      • . 

22.  Ordinary  care  is  that  degree  of  it,  which,  under  the  same 
•  ircumstances,  a  person  of  ordinary  prudence  would  take  of  the 
same  tiling,  were  it  Ins  own;  and  it  will  differ  much,  according 
to  the  nature  of  the  thing,  the  purpose  for  which  it  was  hired, 
and  the  particular  circumstances  of  risk  under  which  the  loss 
occurred.     Ibid. 

23.  The  question  of  due  care  ought  not  to  be  left  to  the  jury; 
it  being  the  province  and  duty  of  the  court  to  advise  them  on 
the  point,  supposing  the  facts  to  be  proved.     Tbid 

24.  If  an  owner  hire  out  his  slave  for  a  particular  purpose,  it 
is  to  be  supposed  that  he  is  tit  for  it,  and,  therefore,  he  may  In- 
set to  that  service,  and  kept  at  it  in  the,  usual  way;  and  if  there 
1  in  h  service,  it  is  to  be  presumed  that  the  owner  must 
have  foreseen  them,  and  provided  for  them  in  the  hire.     Ibid. 

2").  Although  then'  be  a  special  contract  to  do,  or  not  to  do,  a 

particular  thing,  a  party  is  not  always  bound   to  resort  to  it,  to 

■     c  damages  for  a  breach,  but  may  declare  in  tort,  and  say 

that  the  defendant  has  neglected  to  perform  his  duty.     RobinsoM 

v.  Thredqill,  13  Ired..  39, 

26.  What  amounts  to  negligence  is  a  question  of  law;  and 
the  plaintiff  is  entitled  to  special  instructions  upon  certian 
facts  presented  by  the  testimony,  or  upon  the  whole  case,  it  he 

to  subject  himself  to  the  disadvantage  of  having  all  the 
conflicting  testimony  taken  against  him.     Where  such  special 

tions  are  asked  \\n;  they  ought  to  be  given  by  the  court, 
and  it  would  bo  error  to  submit  the  case  to  the  jury  with  gen- 
eral instructions  only.     Avera  v.  Sexton,  13  Ired.,  247. 

27.  Where  a  creditor  had  placed  a  note  in  the  hands  of  an 
officer  for  collection,  and  another,  by  persuasion,  induced  the 
officer  not  to  collect,  and  the  debtor  not  to  pay,  the  debt;  if  tea* 


ACTION  ON  THE  CASE.— V.  33 

held  that   tho  creditor  had  no   ground  of  action  on  the   case 
against  the  other  person.     Piatt  v.  Potts,  13  Ired.   455. 

28.  When.'  the  law  from  a  given  statement  of  facts  raises  an 
obligation  to  do  a  particular  thing,  and  there  is  a  breach  of  that 
obligation  and  a  consequent  damage,  an  action  on  the  case, 
founded  on  the  tort,  is  the  proper  action.  Bond  v.  Hilton,  Busk, 
S08. 

29.  A  slave  was  hired  for  a  yar  to  A.  upon  an  agreement  that 
he  should  not  he  carried  out  of  the  county.     A  ordered  him  to  a 

Elace  out  of  the  county,  and  when  on  his  way,  he  was  directed 
y  the  owner  not  to  go  out  of  the  county  unless  compelled  by 
force;  whereupon  tin1  slave  remained  where  he  was  for  a  fort- 
night and  then  obeyed  the  order  of  A  ;  it  was  held,  that  the 
conduct  of  the  owner  was  an  unlawful  interference  with  the 
rights  of  A.  for  which  an  action  on  the  case  might  be  maintain- 
ed.    Sample  v.  Bell,  Busb,  338. 

30.  An  action  on  the  ease  will  lie  on  behalf  of  a  bailor  against 
one  who  commits  a  trespass  to  the  thing  bailed;  and  the  plain- 
till'  will  be  entitled  to  at  least  nominal  damages,  though  no 
actual  injury  is  done  to  the  property.  White  v.  Griffin,  4  Jones, 
139. 

31.  Where  a  person  was  working  in  his  new  ground,  within 
twenty-live  or  thirty  yards  of  woods,  and  put  fire  to  his  log 
heaps,  when  the  weather  was  calm,  but  afterwards  the  wind  rose 
and  drove  the  fire  with  irresistible  violence  into  the  woods,  it 
was  held,  Hint  he  was  not  guilty  of  negligence,  so  as  to  render 
him  liable  for  the  damage  done  by  the  fire.  Averitt  v.  MurreTL, 
4  Jones,  323. 

32.  The  killing  of  a  cow  or  other  animal  on  a  railroad,  by  the 
train's  rhnning  over  it,  is,  not  of  itself  proof  of  negligence  in 
ih  engineer.  Scott  v.  Wilmington  and  Weldon  Railroad  Com- 
pony,  -t  Jones,  432.  (Such  killing  is  now  made  prima  facie  evi- 
dence of  neglect  by  the  railroad  company,  Act  of  1856,  eh.  7.) 

33.  A  right  verdict,  found  by  a  jury  on  the  question  of  negli- 
gj  nce.will  cureawrong  charge  by  the  court,  given  on  that  pointi 
GJiqffin  v.  Laivrance,  5,  Jones,  17'.'. 

.">-i.  Where,  in  an  action  against  a  carpenter  for  the  negligentuse 
of  fire,  whereby  the  plaintiff's  house  was  burnt,  the  defence  was, 
that  tin:  plantiff  knew  of  and  assented  to  the  use  of  the  lire,  in 
the  manner  now  complained  of;  it  was  held,  to  be  some  evidence 
of  such  assent  that  ihe  plaintiff's  agents  had  used  fire  at  the  same 
place  and  in  the  same  manner,  with  his  knowledge  and  without 
objection  from  him,  and  that  he  had  said,  after  his  house  was 
burnt,  that  it  was  an  accident.     Jordan  v.  Lassiter,  6  Jones,  130 

35.  Where  the  keeper  of  a  livery  stai>le  permitted  a  stage 
driver  to  go  into  his  stable,  at  a  late  hour  in  the  night,  to  take 
out  the  stage  horses  kept  there,  in  consequence  of  which  a  horse 
of  the  plaintiff,  also  kept  there,  made  his  escape,  either  by  going 


U  ACTION  ON  THE  CASE  — Y. 

out  with  the  stage  horses,  or  through  a  door  which  the  driver 
had  left  partly  open,  it  was  held,  that  the  owner  of  the  stable  was 
liable  for  the  loss  of  the  plaintiff's  horse.  Swarm  v.  Brown,  6 
Jones,  150. 

36.  Where  it  appeared  that  the  cars  on  a  railroad  were  running 
at  a  greater  than  usual  speed,  upon  a  straight  part  of  the  road, 
in  the  day  time,  and  that  one  of  several  cattle,  which  were  feed- 
ing near  by,  was  killed  by  the  train,  it  was  held,. that  it  was  neg- 
ligence not  to  slacken  the  speed,  and  to  omit  the  blowing  of  The 
steam  whistle.  Ay  cock  v.  Wilmington  and  WeMon  Railroad  Corn- 
pony,  (>  Jones,  231. 

37.  In  an  action  on  the  case  for  an  injury  to  a  hired  slave  al- 
leged to  have  been  caused  by  negligence,  it  is  no  proof  of  such 
negligence,  that  the  hirer  gave  the  slave  a  pass  to  go  to  a  certain 
place  by  a  railroad,  as  an  indulgence,  though  he  had  been  hired 
as  a  turpentine  hand,  and  the  hirer  knew  that  he  was  addicted 
to  drunkenness,  and  though  he  was  injured  while  travelling  on 
the  railroad.     George  v.  Smith,  6  Janes,  273. 

3&  Where  slaves  were  hired  out  at  high  prices  as  railroad 
hands,  for  the  purpose  of  grading  the  track,  it  was  held  to  be 
proper  to  enquire,  whether  by  reason  that  the  work  was  to  lie. 
done  along  an  extended  line,  at  no  particular  point  of  which 
there  was  to  be  al  long  detention,  any  better  provision  for  lodg- 
ing was  usually  made  by  contractors  of  ordinary  prudence 
than  temporary  buildings,  and  whether  the  one,  in  which  the 
defendant's  slaves  were  placed,  was  as  good  as  those  ordinarily 
provided  for  that  purpose.     Slocunn  v.   f/W/ /«//<<)>,  o'  Jones,  '■':'>'< 

39.  Where  slaves,  hired  to  work  on  a  railroad  track  within  a 
certain  limit,  were  carried  beyond  that  limit,  to  a  place  where 
they  were  ordinarily  well  lodged  and  provided  for,  but  wilfully 
deserted  the  defendant's  service  in  a  snow  storm,  by  which  they 
were  frost  bitten  and  injured;  it  was  held,  that  the  defendant 
was  liable  for  nominal  damages  for  breach  of  his  contract,  in 
carrying  the  slaves  beyond  the  prescribea  limit,  but  not  for  the 
injiu  ies  arising  from  their  own  wilful  exposure.     Ibid. 

40.  Where  a  cattl  ■  b  'List,  on  the  railroad  trade,  would  not  be 
driven  off  by  a  person  who  tried  to  do  so,  and  could  not  be 
scared  off  by  the  steam  whistle,  a.nl  the  engineer  tried  to  stop 
the  train  before  it  reached  and  killed  the  beast;  it  washeld,  that 
there  was  no  negligence,  to  subject  the  company  to  an  action  on 
the  case.  Montgomery  v.  Wilmington  and  Weldon  Railroad  Com- 
pany, <">  Jones,  4(14. 

41.  In  an  action  on  the  case  for  unskilful  and  negligent  treat- 
ment of  the  plaintiff  by  the  defendant,  as  a  physician,  it  was 
I, ■I*/,  that  the  question  of  unskilfulness  and  negligence  was  one 
of  law  for  tin'  oomt.  and  that  it  was  erroneous  to  leave  it  to  the 
jury.      Woodard  v.  Hancock,  7  Jones,  384. 

42.  Where  a  ,deaf  mute'  slave,  who  was  walking  on  a  railroad 


ACTION  OX  THE  CASE.— V-VL— ADJUTANT  GEN.   35 

track  from  the  direction  of  an  approaching  train,  was  run  over 
and  killed  by  the  train,  and  it  appeared  that  the  engineer  did 
not  know  that  the  slave  was  deaf,  and  that  he  gave  warning  hy 
the  steam  whistle  in  time  fur  a  person  endowed  with  the  sense 
(if  hearing  to  escape;  it  iras  held,  that  the.  company  was 
nnt  liable  tor  the  loss.  Poole  v.  North  Carolina  Railroad  Gom- 
p< mi/,  8  Jones,  340. 

4:1.  Where  a  hired  slave  was  taken  ill  with  typhoid  fever,  and 
the  hirer,  not  knowing  the  nature  of  the  disease,  which  could 
not  be  readily  detected  except  by  a  physician,  sent  him  at  his 
request,  forty  miles  on  the  railroad  cars,  in  pleasant  weather,  to 
the  depot  nearest  his  owner's  residence,  where  he  was  sent  in  a 
buggy  in  the  afternoon  of  the  same  day,  three  miles  to  the  house 
of  the  owner's  mother,  where,  though  well  taken  care  of  by  her, 
assisted  by  two  physicians,  he  died  soon  afterwards;  it  was 
Iwl/I,  that  though  tin'  disease  might  have  been  made  worse  by 
the  sending  the  slave  home,  yet,  under  the  circumstances,  the 
hirer  could  not  be  charged  with  a  want  of  proper  care  and  pru- 
dent management,  so  as  to  subject  him  to  damages  fur  the  loss 
of  the  slave.  Haden  v.  North  Carolina  Railroad  Company,  8 
Junes,  302. 

44.  Where  it  had  been  made  to  appear  by  tin.'  plaintiff's  testi- 
mony, that  his  horse  had  been  injured  on  a*railroad,  by  the  run- 
ning in  a  train  of  ears  against  him,  and  it  was  left  doubtful 
from  the  defendant's  testimony,  whether  the  brakes  had  been 
ippliedto  the  wheels  of  the  train,  after  the  animal  was  discov- 
ered to  be  on  the  track,  it  was  hihl,  that  the  prima  fade  ease  of 
negligence,  made  by  the  act  of  1856,  ch.  7.  was  not  repelled. — 
i'la,  ';.  v.  Western  N.  G.  Railroad  Company,  1  Winst,  109. 

See  ( Assumpsit — When  it  will  or  will  not  lie,  37V)  (Bailment 
8^-11-12-13  14-18.)  (Draining  low  lands,  6.)  (Executors  and 
Administrators — Of  their  liability  to  creditors,  &c,  1—26.)  (High- 
way 39.)  (.Mills — Proceedings  by  petition  under  the  act  of 
1809 — 3L)  (Seduction.)  (Trespass— To  persons  and  personal 
property,  when  it  will  lie — 15-1-6-17-24-25-30-32-33.)  (Tres- 
pass— Of  Trespass  quart  clausum  fregit,  41-43  44  4.5 j)  (Tro- 
ver—When  it  will  lie— IS  L8  36;)  (Waste— 10  11-12-15-16;) 
(Tenant  in  common,  5-  13.) 

VI.      WHEN    THE    ACTION    WI9CL    OR    WILL    NOT    ABATE. 

(  Abatement  by  the  death  of  parties,  3  5-7.) 


ADJUTANT   GENERAL. 

(Militia,  2;)  (Officers  and  Offices,  16.) 


36    ADMINISTRATORS.— AD^IIEALTY.— ADULTERY. 

ADMINISTRATORS. 

See  (Executors  and  Administrators.) 


ADMIRALTY. 

1.  All  persons  are  bound  by  a  decree  in  admiralty,  on  the 
point  then  in  controversy.     Jones  v.   Walker,  2  Hay.,  291,  (475.) 

2.  An  appeal  from  an  inferior  court  of  admiralty  takes  the 
cause  from  that  court,  which  can  no  longer  act  in  it;  but  it  still 
retains  power  to  take  care  of  the  goods  seized,  that  are  the  sub- 
ject, of  the  suit;  and  to  that  end  may  order  the  sale  of  such  as 
are  likely  to  perish.     Ihid. 

3.  Those  persons,  who  become  interested  by  a.  purchase,  under 
orders  and  proceedings  of  a  court  of  admiralty,  are  not  bound 
by  a  decree  as  to  the  right  of  property,  between  the  Ebellants 
and  claimants.     Ihid. 

A.  The  question  of  "prize  or  no  prize"  is 'exclusively  of  ad- 
miralty jurisdiction,  even  though  the  eaptm<ed  vessel  was  nut 
carried  in  for  condemnation.  Simpson  v.  Nadean,  Conf.  Rep. 
115,  (24.3,)  S.  C,  2  Hay,  39,  (202)  and  141,  (312.) 

5.  The  question  of  prize  or  no  prize,  is  exclusively  one  of  ad- 
miralty jurisdiction;  and  whenever  the  jurisdiction  of  admiral- 
ty has  once  attached  by  the  taking  as  prize,  nothing  subsequent 
can  take  it  away.     Hattett  v.  Lamotke,  3  Murph.,  279. 

6.  The  question  of  prize  or  no  prize  must  be  decided,  whether 
ih«'  d<  fendant  has  committed  a  wrongful  i  om  ersion  or  not.  The 
jurisdiction  of  a  common  law  court,  administering  a  code  not 
common  to  other  nations,  is  ousted,  whenever  it  appears  that 
the    capture  was   made   in   a   hostile  character.      Ibid. 

7.  Whether  the  State,  which  granted  the  commission  to  the 
cruizer,  could  rightfully  exercise  the  pren  tgatives  of  sovereign- 
ty, is  a  question  to  be  determined  by  the  law  of  nations,  and 
not  by  the  municipal  laws  of  any  country.     Ihid. 


ADULTERY 

See  (Eornication  and  Adultery.) 


ADVANCEMENT.— AFFRAY.— AGENT,  &c.  37 

ADVANCEMENT. 

See  ( Distribution  2-3-5-9-12-14-15-16-17-18-20-21-22-23.) 


AFFRAY. 

See  (Indictment — WKen  an  indictment  will  lie,  49-50-99;) 
(Indictment — Form  and  matters  relating  thereto,  154;)  (Indict- 
ment— Of  the  trial,  verdict  and  judgment,  27-93;)  (Indictment 
—  Plea  of  former  acquittal  or  conviction,  16..) 


AGENT  AND  PRINCIPAL. 


f.  How  an  agent  is  to  be  appointed, 
and  how  his  power  may  be  re- 
voked. 
TI.  Acts  which   create  the  relation  of 
agent  and  principal. 

III.  Agents  acting  for  the  public. 

IV.  Factors. 

V.   ®f  the  righl.s  of  an  agenl  a< 
third  pereons. 


VI.  Of  the  liability  of  agents  to  third 

person;  .■ 
VII.  Of  the  liability  and  rights  of  au 
agent  as  respects  his  principal. 
VIII.  Of  the  liability  of  a  principal  foi 
the  act  of  his  agent,  or  by  notice 
to  him. 


E       HOW    AS    AGENT    IS    TO  15E    APPffllKTED    AM)    HOW"     HIS    POWER    MAY    BE 
REVOKED. 

1.  A  fetter  of  attorney  1  n  attorney  in  fact,  for  the  purpose 
of  causing  an  arrest,  must  be  under  seal  Fitzpdirick  v.  -V  "7.  i 
Hay.,  s.  (  Loo,)  contra  Whitmore  v.  Uarr.     Ibid :  181.,  (379.) 

2.  .''H  a  .nil,  to  convey  real  estate  for  his  principal,  cannot  be 
appointi   ;  b]   i  arol.     Shambiirger  v.  Kennedy,  1  Dev.,  1. 

."..  An  agent  of  bail  must  have  at  least  a  written  authority 
to  arrc  il  the  principal.     Dick  v.  Si  'Jeer,  1  D  >v.,  91. 

4.  A  powi  r  of  attorney,  or  other  authority,  is  in  general  revo- 

from   its  nature;  and  the  power  of  revoking  an  authority 
may  bi  d  at  any  time  before  its  actual  execution,  Broolc- 

•  .  6  [red.,  231. 

5.  A  power  of  attorney;  though   under  seal     aa]    be  t'evoked'i 
by  par.  '  ■'.,   v.  Bn  ■■■■■     e,  8  I  red..  74 


38  AGENT  AND  PRINCIPAL— II-IIL-IY. 

II.       ACTS   WHICH    CREATE    THE    RELATION    OF    AGENT    AND    PRINCIPAL. 

1.  Where  a  debtor  to  a  bank,  by  an  agreement  therewith, 
sold  his  property  and  took  bonds  payable  to  the  bank,  of  which 
the  bank  was  to  receive  in  payment  such  as  might  be  approved, 
held  that  a  bond  taken  by  the  debtor  and  offered  to,  but  rejected 
by,  the  bank,  was  in  effect  delivered  as  a  bond  to  the  debtor  as 
the  agent  of  the  bank,  constituted  as  such  by  the  agreement;, 
and  that  the  refusal  of  the  bank  to  give  the  debtor  credit  for 
the  bond  did  not  make  it  void.  Bank  of  Neivbern  v.  Pugh,  1 
Hawks,  198. 

2.  If  a  plaintiff,  at  the  time  he  issues  a  writ,  endorses  upon  it 
that  it  is  to  the  use  of  another  person,  he  thereby  constitutes 
such  person  his  agent  in  the  collection  of  the  claim,  and  author- 
ises him  to  receive  any  thing  he  thinks  proper,  in  discharge  of 
it.     Clark  v.  Shields,  3  Hawks,  461. 

III.       AGENTS   ACTING    FOR    THE   TUBLIC. 

1.  A  person,  who  contracts  as  agent  for  the  State,  is  not  per- 
sonally responsible.     Stanly  v.  Hawkins ,"iMar.,  55,  ^52.) 

2.  An  action  may  be  sustained  in  the  name  of  the  United 
States,  on  a  covenant  made  in  its  behalf  by  a  public  officer, 
and  its  special  agent  quoad  hoc,  although-  such  agent  do  not 
sign  and  seal  the  contract  in  its  name.  United  States,  v. 
Blount,  2  Car.  L  R,  84,  (181.) 

3.  An  agent  for  the  public  is  not  answerable  personally  for 
any  contract  made  by  him  in  his  official  character,  unless  he 
specially  binds  himself  to  be  personally  responsible.  Tucker  v. 
Justices,  of  IredeU,  13  Ired.,  434. 

4.  Where  the  county  court  made  an  order  directing  a  puBHe 
agent  to  pay  a  contractor  fur  work  done,  and  the  agent  promised 
to  pay  the  amount  of  the  order,  but  it  was  subsecpiently  revoked 
by  the  court,  it  was  held  that  tin.'  agent  was  thereby  discharged 
from  any  liability  ori  his  promise.     Dey  v.  Lee,  4  Jones,  238. 

See  (Contract — Construction  of  contracts  and  when  an  action 
will  lie  39-42.) 

IV.       FACTORS. 

1.  If  a  purchaser  pay  a  factor  for  goods  purchased,  before  he 
is  forbidden  by  the  owner,  the  payment  is  valid.  Goldenv. 
Levy,   1  Car.  L.  h'.,  527,  (141.) 

2.  If  a  purchaser  pay  the  owner,  against  the  orders  of  the 
factor,  the  payment  tk  good  ;  therefore,  when  the  captain  of  a 
stranded  vessel  employed  the  defendants  to  sell  the  cargo 
saved,  as  auctioneers,  which  they  did,  ami  paid  the  amount  to 


AGENT  AND  PRINCIPAL.— IV.-V  .  39 

the   owners   of  the  goods,   such   payment   was  held  good. — 
Ibid. 

3.  A  sale  by  a  factor  creates  a  contract  between  the  owner  of 
the  goods  sold  and  the  purchaser.     Ibid. 

4.  It  seems  that  the  construction  to  be  put  upon  written  in- 
structions, from  a  principal  to  his  factor,  is  to  be  determined  by 
the  court,  and  not  by  the  jury.  Symington  v.  McIAn,  1  Dev.  & 
Bat.,  291. 

5.  Where  a  factor  sold  the  goods  of  his  principal,  together 
with  some  of  his  own,  and  took,  in  payment  for  the  whole,  a 
promissory  note  made  by  another  person,  payable  to  himself, 
it  was  twltl,  that  the  purchaser  was  discharged,  and  that,  there- 
fore, the  factor  became  himself  responsible  for  the  price  of  the 
goods.  And  the  court  seemed  inclined  to  think  that  either  cir- 
cumstance, taking  the  note  of  the  third  person,  or  blending  the 
claims  of  the  factor  and  principal  in  the  same  note,  if,  in  the 
latter  case,  it  hail  been  the  note  of  the  purchaser  himself,  would 
have  1  ieen  sufficient  to  create  the  responsibility  in  the  factor. — 
Ibid, 

<).  T\  here,  in  addition  to  the  circumstances  above  stated,  it 
appeared  that  the  factor  concealed,  from  his  principal,  the  fact 
ot  his  having  taken  the  note,  and  representee!  the  purchaser  as 
alone  bound  for  the  price  of  the  goods,  much  more  will  he  be 
responsible.     Ibid 

7.  A  general  power  to  a  factor  to  sell  implies  a  power  to  do 
so  in  the  usual  way,  at  the  place  where  the  sale  is  to  be  made. 
Ibid 

8.  A  direction  to  a  factor,  "to  sell  for  the  best  prioe,"  means 
no  more  than  the  law  enjoins,  when  the  principal  is  silent;  and 
a  direction,  "to  sell  immediately,"  is  not  violated  by  a  delay  of 
fifteen  days,  where  nothing  is  proved  as  to  the  state  of  the 
market. 

V.       OF    THE    RIGHTS   OF   AX    AGENT    AS    AGAINST   THIRD    PERSONS. 

1.  Iii  general  a  mere  agent,  who  makes  a  contract  in  behalf 
of  another,  cannot  maintain  an  action  thereon,  in  his  own  name, 
either  at  law  or  in  equity.  but  where  the  agent,  who  makes  a 
ci  mi  met,  has  a  beneficial  interest  in  its  performance,  for  commis- 
sions, &c,  as  in  the  case  of  a  factor,  broker  or  auctioneer,  or  a 
captain  of  a  ship  for  freight,  he  may  sustain  an  action  in  his 
own  name,  although  the  principal  or  owner  might  sue  in  his 
.own  name.      Whitehead  v.  Potter,  4  Ired.,  257. 

2.  The  consent  of  the  principal  or  owner  is  not  necessary  to 
enable  the  agent,  in  those  cases,  to  sue  in  his  own  name,  it  he 
ing  implied  in  the  nature  of  his  agency.     1  hid. 


40  AGENT  AND  PRINCIPAL.—  VI. 

VI.       OF    THE    LIABILITY   OF    AGENTS    TO    THIRD    PERSONS. 

1.  An  action  will  not  lie  against  a  person,  who  describes  him- 
self as  agent,  in  the  contract  which  he  executes  for  another. 
Potts  v.  Lazarus,  2  Car.  L.  R.  83,  ( L80.) 

2.  An  agent  acting  under  a  parol  authority  cannot  bind  his 
principal  by  deed  ;  but  a  bond  executed  by  an  agent  thus  eon 
stituted,  in  the  name  of  his  principal,  is  not  the  bond  of  the 
agent,  and  the  fact  that  he  exceeded  his  authority  does  not 
render  him  liable  as  an  obligor;  the  only  remedy  against 
him,  if  he  falsely  and  fraudulently  misrepresents  his  author* 
ity,  being  a  special  action  on  the  case.  Delius  v.  Gawthorn,  2 
Dev.,  90. 

3.  A  person  who  makes  a  parol  contract  in  the  name  of 
another,  without  sufficient  authority,  and  receives  the  consider- 
ation, may  be  declared  against  as  a  contracting  party,  because 
the  promise  attaches  to  the  consideration.     Ibid. 

4.  Property  delivered  to  an  agent,  under  a  contract  made  by 
his  principal  with  a  third  person,  cannot,  without  the  consent  of 
the  principal,  be  applied  by  the  agent  to  the  payment  of  a  debt, 
due  to  himself,  from  that  person;  and  the  fact  that  the  agent 
was  indebted  to  the  principal,  and  the  principal  to  the  party 
delivering  the  property,  does  not  alter  the  rule.  Edwards  v. 
Powell,  2  Dev.,  190. 

5.  Where  an  agent  had  received  money  to  pay  off  certain 
debts  of  his  principal,  and  made  a  payment  to  the  creditor,  for- 
which  the  principal  was,  by  mistake,  credited  twice,  such  agent| 
in  an  action  against  him  by  tin-  creditor  to  recover  the  amount 
of  the  mistake,  cannot  be  rendered  liable  therefor,  if  it  ap- 
pear that  he  afterwards  had  a  settlement  with  his  principal, 
and  paid  over  to  him  tiie  balance  remaining  in  Ins  hands,  after 
being  allowed  for  only  what  he  had  actually  paid  the  creditor: 
State  Bank  v.  Rohards,  2  Dev.,  &  Bat.  111. 

G.  Articles  were  purchased  for  a  manufacturing  company  d 
which  A  was  the  agent,  and  he  thereupon  gave  a  due  bill,  in 
this  form:  "Due  E.  M.  $78,  val.  ree'd.  A,  agent  for  M.  Co.," 
and  /'/  was  Jield,  that  A  was  not  personally  liable 'thereon. — 
McCall  v.  Clayton,  Busb.  422. 

7.  An  agent,  who  draws  a  bill  of  exchange,  as  agent,  on  his 
principal,  and  for  the  benefil  of  his  principal,  is  not  liable  on  it 
to  the  payee.     Haul:  of  Gape  Fearv.   Wright,  3  Jones,  ."»7li. 

8.  Where  an  agent  contracted  for  work  to  be  done  for  his 
principal,  without  disclosing  the  fact  that  it  was  not  for  him- 
self, he  is  personally  liable,  though  the  workman  may  find  out 
the  agency  before  the  work  was  begun,  if  it  was  after,  the  con 
tract  was  made.     Forney  v.  >Sla']>/>,  4  Jones  52.7 

See  (Set  off.   26.) 


AGENT  AND  PEESTCIFAL.— VIE  41 

VII.       OF    THE     LIABILITY   AND     EIGHTS     OF    AN    AGENT,    AS     RESPECTS     HIS 
PRINCIPAL. 

1.  A  consignee  was  instructed  to  exchange  the  consigned 
produce  tin- that  of  Surinam ;  he  found  it  impracticable  to  ex- 
change for  anything  but  sugar  and- coffee,  which  were  contra- 
band by  the  law  of  that  country;  though  such  kind  of  traffic 
was  usual,  as  no  attempt  to  enforce  the  law  had  been  made  for 
many  years;  the  consignee  mad'  the  exchange  for  sugar,  but;. 
owing-  to  an  attempt  then  made  to  enforce  the  law,  he  re-landed 
the  sugars  and  took  them  in  again  secretly,  whereby  a  large 
portion  of  them  became  damaged  and  lost;  held,  that  under 
these  circumstances  the  consignee  was  not  resjpensible  for  the 
loss.     Hagan  v.  Paine,  1  Hay.,  272,  (313.) 

2.  An  agent  who  sells  the  property  of  his  principal,  shall  ac- 
count with  him  for  the  full  amount  of  the  price  he  receives. 
Therefore,  where  an  agent  was  instructed  to  sell  a  parcel  of 
tobacco  which  was  inferior  to  his  own,  and  he  sold  his  own 
ata  higher  price  than  he  could  then  get  for  that  of  his  principal, 
saying  he  would  let  his  principal  have  the  benefit  of  it,  and 
keep  his  principal's  in  its  stead,  and  afterwards  got  a 
higher  price  for  the  tobacco  of  his  principal,  it  was  held,  that  he 
was  bound  tn  account  for  the  latter  price,  though  he  had  acted 
bona  fide.  Meabr  v.  Mmfile,  2  Murph.,  272,  S.  C.,  1  Car.,  L.  1!., 
254,  (25.) 

3.  Where  an  agent  collects  money  for  his  principal,  no  action 
can  be  brought 'Until  a  demand,  and  especially  is  this  so  when 
the  principal  lives  out  of  the  State.  Potter  v.  Sturgis,  1 
Dev.,  79. 

4.  What  degree  of  care  and  diligence  is  required  of  one,  who 
undertakes  to  sell  goods  for  another,  and  to  sell  to  none  but  sol- 
vent persons,  and  what  degree  of  attention  and  diligence  in  one, 
who  undertakes  to  collect  notes  or  accounts  for  another,  quaere  '. 
Pollard  v.  To  I,  3  Ired.,  470. 

5.  When  a  demand  is  made  for  payment,  of  an  agent  who  has 
collected  money,  and  he  fails  to  pay,  that  failure  is  in  law  a  re- 
fusal to  pay,  so  Ms  to  entitle  the  principal  to  his  action  against 
the  agent.     Hays  v.  Smith,  4  Ired,  254. 

6.  A  mother,  who  had  money  belonging  in  part  to  her  chil- 
dren, advanced  it  to  the  defendant  for  the  purpose  of  his  pur- 
chasing negroes  in  this  State,  and  delivering  them  to  her  in 
Georgia  where  she  resided;  the  defendant  never  bought  the 
negroes;  and//  was  held  that  she  could  maintain  an  action  to 
recover  backthe  money,  krherown  name,  as  the  defendant  acted 
as  her  agent,  and  h  did  not  appear  that  he  knew  that  any  part 
of  the  money  belonged  to  her  children.  Buchanan  v.  Parker,  5 
Ired.,  597. 

7.  Where  an  agent  is  appointed  to  sell  articles  of  personal. 


42  AGENT  AND  PRINCIPAL.— VII. 

property,  the  law  implies  that  lie  lias  a  right  to  warrant  their 
soundness,  in  behalf  of  hie  principal.  And  if  he  sell  such 
articles  with  a  warranty  that  binds  himself  personally,  and 
damages  are  recovered  against  him  upon  the  warranty,  by  the 
purchaser,  he  has  a  right  to  be  reimbursed  by  his  principal  to 
the  amount  of  such  damages,  as  well  as  of  the  necessary  costs 
in  defending  the 'suit.     Hunter  v.  Jameson,  6  Ired.,  252. 

8.  Where  A,  residing  in  North  Carolina,  appointed  B,  in  Ten- 
nessee, to  take  a  lease  for  him  of  a  certain  tract  of  land,  which 
13  did,  but  the  lessor,  not  being  willing  to  trust  A,  required  B  to 
give  his  own  note  fcr  the  rent,  which  he  did  and  afterwards 
paid  it;  it  was  JiM  that  this  was  an  undertaking  by  B,  within 
the  scope  of  his  general  authority ;  that  A  was  bound  to  reim- 
burse him,  and  that  it  was  not  necessary  for  B  to  give  A  any 
notice  of  the  payment,  to  entitle  him  to  an  action  against  A,  for 
the  money  so  paid.     Irions  v.  Cook,  11  Ired.,  203. 

9.  An  agent,  who  in  making  a  contract  discloses  the  name  of 
his  principal,  is  not  legally  responsible  to  the  person  with  whom 
he  contracts,  and  therefore,  if  he  pay  any  damages  arising  from 
a  breach,  he  cannot  recover  the  amount  so  paid  for  his  principal, 
unless  paid  by  his  special  request.  Meadows  v.  /Smith,  12 
Ired,  IX. 

10.  A  principal  'cannot  maintain  an  action  against  his  agent 
for  money  had  and  received,  until  a  demand  and  refusal;  but  the 
proof  of  a  demand  and  refusal  is  not  restricted  to  any  particular 
form  of  words,  and  any  declaration  of  the  agent  to  the  principal, 
which  shows  a  denial  of  his  right,  puts  him  in  the  wrong,  and 
gives  to  the  principal  a  right  of  action.  Moore  v.  Hijman,  12 
[red.,. .38. 

11.  Where  the  plaintiff  had  employed  the  defendant  to  sell 
for  him  a  quantity  of  fish,  and  in  attempting  to  make  a  settle- 
ment, they  differed  as  to  six  barrels  of  tin:'  fish,  for  which  the 
plaintiff  claimed  a  credit;  it  Was  helil,  that  this  was  not  only  «'v- 
idence  of  a  demand,  but  was  in  law  a  demand,  which  gave  the 
plaintiff  an  immediate  right  of  action,  and  set  the  statute  of 
limitations  to  running.     Ibid. 

12.  Where  the  plaintiff,  the  defendant  and  another  shipped! 
produce  on  the  same  boat  and  consigned  it  to  a  factor,  who  sent 
the  defendant  a  draft  on  Now  York  for  the  whole  amount,  which 
he  sold  and  received  the  proceeds,  endorsing  it  in  his  own  name, 
but  the  paper  coming  back  dishonored,  he  returned  the  money 
to  the  endorsee,  aiid  after  using  duo  diligence  failed  to  recover 
it  from  the  drawer;  it  waslield,  that  the  defendant  was  not,  as 
agent  for  the  plaintiff,  liable  to  him  for  his  share  of  the  money. 
Bland  v.  Scott,  8  Jones,  100. 

See  (Payment  8.) 


AGENT  AND  PRINCIPAL.— VIII.  43 

VIII.       LIABILITY     OF    A     PRINCIPAL     FOR    THE    ACT     OF   HIS   AGENT,    OR     BY 
NOTICE    TO    1ILU. 

1.  If  one  person  sell  the  horse  of  another  and  warrant  his 

soundness,  witl iout  the  eonsent  of  the  owner,  who  afterwards 
accepts  the  purchase  money  without  any  knowledge  that  the 
warranty  hail  been  made,  the  owner  shall,  nevertheless,  be  an- 
swerable on  the  warranty.      Lane  v.  Dudley,  2  Murph.,  119. 

2.  Where  an  attorney  in  fact  conveys  land  in  his  own  name, 
without  reference  to  his  power  or  his  principal,  nothing  passes 
by  the  deed.     Scott  v.  McAtyin,  S.  ( ;.  Term  R  155,  (587.) 

'.'>.  An  attorney  in  factj  acting  for  his  principal,  should  perform 
the  act  in  the  name  of  his  principal.  Locke  v.  Alexander,  1 
Hawks,  412. 

4.  Where  A,  as  the  agent  of  B,  received  money  from  C  to  pay 
him,  but  neglected  to  do  so,  %',  upon  paying  B  in  full,  has  no 
right,  without  a  specific  application,  to  offer  these  facts  as  evi- 
dehce  of  the  payment  of  another  debt  due  from  him,  in  which 
A,  the  agent,  is  beneficially  interested.  Smith  v.  Fagan,  2  l)ev.. 
298. 

5.  Xo  power  can  be  inferred  from  the  relation  ef  master  and 
servant,  whereby  the  servant  can  bind  his  master;  hence  a 
groom  has  no  right  to  vary  from  his  employer's  terms,  unless  a 
special  authority  to  do  so  be  proved.  Moore  v.  Tickle,  3  Dev., 
244. 

6.  Where  a  bill  was  drawn  in  favor  of  an  agunt,  for  a  debt 
due  to  his  principal,  and  accepted,  and  the  acceptor  requested 
that  it  might  be  charged  against  him  on  the  principal's  books, 
it  tons  held,  that  this  was  a  promise  to  the  principal,  on  which  he 
might  support  an  action  in  his  name  against  the  acceptor,  where 
the  agency  was  known  at  the  time  to  the  acceptor.  Jordan  v. 
Tarkington,  4  Dev.,  357. 

7.  The  principal  is  bound  by  a  warranty  made  by  his  agent,  in 
the  sale  of  a  slave  or  other  chattel.  Williamson  v.  Ganaday,  3 
Ired,  34*9. 

8.  The  signing,  sealing  and  delivery  of  a  deed  by  an  agent, 
except  where  the  authority  is  by  an  instrument  under  seal,  will 
only  he'  valid  when  they  are  lone  in  the  actual  presence  of  the 
principal.     Kime  v.  Brooks,  '•'  Ired.,  2LS. 

!•.  A  principal  authorized  his  agent  to  purchase  some  articles 
for  him,  but  only  so  far  as  he  had  the  cash  of  the  principal  to 
pay  for  them.  The  agent  purchased  on  the  credit  of  his  prin- 
cipal without  paying  any  money,  and  the  articles  were  delivered 
to  the  principal,  who  received  them  and  converted  them  to  his 
own  use;  and  if  iras  lidd,  that  the  seller  had  a  right  to  recover 
the  price  of  the  articles  from  the  principal.  Patton  v.  Brittain, 
10  Ired.,  8. 

10.  Where  A  made  a  contract  with  B,  that  the  latter  should, 


44  AGENT  AXD  PRINCIPAL.— VIII. 

for  a'  stipulated  sum,  remove  a  house  belonging  to  the  former, 
from  one  side  of  the  street  to  the  other  side,  and  1)  performed 
the  work  so  negligently  as  to  cause  an  injury  to  C,  it  was  /We?. 
(Kul'iiu  C.  J.  dissentient.e)  that  A  was  liable  to  < '.  for  the  damagit 
the  latter  had  sustained  by  the  neglect  of  15.  WiswaU  v.  Jhin- 
son,  10  [red.,  554. 

11.  Where  an  agreement  purported  to  be  between  A  15,  "for 
and  on  behalf  of  the  Albemarle  Swamp  Land  Company,  of 
the  one  part,  and  15  R,  of  the  other  part.''  and  stipulated  that 
the  party  of  the  second  part  should  get  "on  the  land  of  the 
party  of  the  first  part,"  a  certain  quantity  of  lumber,  and  deliver 
it,  &e.,  and  in  conclusion  it  is  said  "in  witness  whereof  A 
15,  for  and  on  behalf  of  the  party  of  the  first:  part,  being  the 
Albemarle  Swamp  Land  Company"  and  1!  R,  as  the  party  of 
the  second  part,  have  hereunto  set  their  hands  and  seals;"  and 
the  agreement  was  signed  by  "A  B,  for  and  in  behalf  of  the 
Albemarle  Swamp  Laud  Company;"  it  was  held,  tha>t  the  con- 
tract was  between  the  said  company  and  1!  R,  and  that  the 
company  only  could  sustain  an  action  in  its  own  name,  for  a 
breach  of  the  contract.      WMtehmd v.  Reddick,  12  [red.,  95. 

12.  The  employer  is  answerable  for  any  carelessness,  ignorance1 
or  want  of  skill  in  his  overseer,  while  engaged  in  the  course  of 
his  employment,  whereby  a  permanent  injury  is  done  to  a  slave 
hired  from  another  person.  Per  7/ »////;,  C.  .1.  It  is  the  ease  sim- 
ply of  bailor  and  bailee,  and,  on  the  principles  applicable  to  that 
relation,  the  plaintiff  is  entitled  to  recovers  Jones  v.  Glass,  13 
Ired.,  305. 

13.  When  a  person  undertake  s  to  load  a  boat  with  goods,  and 
by  his  negligence  the  goods  are  suffered  to  fall,  so  as  to  injure 
the  boat,  he  isliable  for  the  damages  to  the  owner  of  the  boat. 
But  where  such  person  did  not. aet«,s  agent  of  the  defendant, 
whose  duty  it  was  to  load  the  boar,  but  Ike  leading  was  under- 
taken and  conducted  by  another  person,  the  owner  of  the  goods; 
the  defendant  is  not  liable.  Pate  v.  Greenville  ami  Roaiwke 
Railroad  Company,  13  Ired.,  325. 

14.  Where  ai  a  ri  rrl  was,  in  the  absence  of  his  principal,  em- 
ployed by  the  plaintiff  to  carry  off  goods,  m  the  principal's  wagon, 
and  sell  them  for  him,  contrary  to  the  principal's  orders,  but  he 
afterwards  i-ecogi)ised  the  act  of  the  agent  in  carrying  off  the 
goods,  and  received  pay  lor  the  service  of  the  \  a  and  team, 
and  also  for  that  of  the  agent;  it  was  held,  that  the  principal 
was  He-  liable  to  the  plaintiff,  for  the  money  received  by  the 
agent  for  lie-  sal«  el'  die  goods,  when  it  appeared  that,  as  to  such 
sale,  the  plaintiff  had  trusted  the  agent  and  looked  to  him  for 
the  pric  to  bi  obtained  for  them.  Hodges  v.  Holderby,  4  Jones, 
500. 

15.  Where  an  instrument,  purporting  to  be  the  cove  iani  of  a 
eorporatiou,  was   signed  and  sealed  by  a  person  pm-porting  to 


A  LI  EX.— I. 


45 


be  its  agent,  with  his  own  hand  and  seal;  it  was  held,  that  though 
it  could  not  be  treated  as  the  covenant  of  the  oorporation,  yet  it 
might  be  evidence  of  its  contract,  upon  proof  of  the  agency,  and 
assumpsit  might  be  sustained  against  it.  Osbornev.  High  Shoals 
Mining  and  Manufacturing  Company,  5  Jones,  177. 

See  (Husband  and  wife — How  far  the  husband  is  bound  for 
the  acts  of  his  wife  before  and  alter  marriage,  5.:)  (Slaves — 
Sales  and  gifts  of  slave.  19-29.) 


ALIEN, 


1.   Who  is  an  Alien. 

II.   The  effect  of  war  with  the  country 
of  an  alii'ii. 


III.  When  an  alien  can,  or  cannot,  sue  in 

this  State. 

IV.  As  to  an  alien  holding  lands. 


.  I.       WHO    IS    AN    ALIEN. 


1.  British  subjects,  residing  out  of  this  country,  became  aliens 
by  the  Declaration  of  Independence  Stringer  v.  Phillips,  2 
Hay.,  158,  (342.) 

2.  When  a  subject  of  the  king  of  Great  Britain  was  duly 
naturalized  in  one  of  the  States,  before  the  adoption  of  the 
Federal  Constitution,  and  continued  to  reside  in  such  State 
until  that  event,  he  became,  by  virtue  of  it,  a  citizen  of  the 
United  States.     Teare  v.  White,  2  Car.,  I..  L'.,  112,  |  - 

3.  According  to  the  Laws  of  this  State,  all  human  beings 
in  it  fall  within  one  of  two  classes,  to  wit,  aliens  and  citi- 
citizens.  Foreigners,  unless  made  members  of  the  State,  conr 
binue  aliens.  Slaves  manumitted  here  become  freemen  and,  if 
born  within  North  Carolina,  are  citizens  of  North  Carolina  ;  and 
all  free  persons,  born  within  the  State,  arc  citizens  of  the  State. 
State  v.  Manuel,  4  Dev.  &  Bat.,  20. 

4.  Naturalization  is  the  removal  of  the  disability  of  alienage. 
Emancipation  is  the  removal  of  the  incapacity  of  slavery.  The 
latter  depends  wholly  upon  the  internal  regulation  of  the  State. 
The  former  belongs  to  the  government  of  the  United  States. 
andit  would  be  a  dangerous  mistake  to  confound  them.     Ibid. 

5.  The  possession  of  political  power  is  not  essential  to  consti- 
tute a  citizen  ;  for,  if  it  were,  then  women,  minors,  and  those 
who  have  net  paid  public  taxes,  are  not  citizens.     Ibid. 

ii.  Free  persons  of  color^  in  this  State,  are  not  to  be  considered 
as  citizens  in  the  largest  sense  of  the  term,  or,  if  they  are,  they 
occupy  such  a  position  in  society,  as  justifies  bhe  legislature  in 


46  ALIEN.— IL-III.-IV. 

adopting  a  course  of  policy  in  its  acts,  peculiar  to  them,  so  that 
they  do  not  violate  those  great  principle's  of  justice,  which  lie 
at  the  foundation  of  all  laws.     State  v.  Newsom,  5  Ired.,  250. 

II.  THE    EFFECT   OF   WAR   WITH    THE    COTOTEY    OF   AX   ALIEN. 

1.  Deists  contracted  with  an  alien  are  not  extinguished  hy 
a  war  with  his  government.  Hamilton  v.  Eaton,  2  War.,  i, 
(83.) 

III.  .    WHEN   AN   ALIEN    CAN,    OR    CANNOT,    SUE    IN    TI11S    STATE. 

1.  Debts  due  to  British  subjects,  paid  into  die  public  treasury 
compulsorily,  by  an  act  of  Assembly,  may,  sotwithstanding,  lie 
recovered  of  the  debtor  by  the  creditor,  under  the  provisions  of 
the  treaty  of  peace  with  Great  Brittain  in  1783.  Hamilton  v. 
Eaton,  2  Mar.,  1,  (83.) 

2.  Plaintiff  sued  on  a  bond,  and  the  plea,  which  was  founded 
on  the  101st  section  of  the  act  of  1772,  eh.  2,  stated  in  substance, 
that  the  plaintiff  had  removed  from  the  Stat.:-,  to  avoid  assisting 
in  the  war  of  the  revolution,,  that  he  had  attached  himself  to 
the  enemy,  &c,  hvld  that  if  the  plaintff  was  a  citizen  of  this 
country,  the  101st  section  was  repealed  by  subsequent  acts  of 
Assembly;  but  if  he  were  not  a  citizen,  but  a  British  subject, 
then,  by  the  4th  article  of  the  treaty  of  peace,  he  is  considered 
an  alien  friend,  and  as  such  entitled  to  sue  in  our  courts.  Cru- 
de*, v.  Neal,  1  May,  338,  (388.) 

3.  An  alien  cannot  maintain  ejectment,  or  any  action  for  the 
recovery  of  the  freehold,  because  he  is  not  allowed   to  acquire 

real  estate;    but  if  he    have  purchased    land  and  is    in  possession 

of  it,  the  purchase  is  good  and  will  he  for  the  benefit  of  the 
State  upon  an  office  found;  before  that,  however,  no  individual 
can  violate  with  impunity  the  possession  of  tin-  alien  purchaser, 
and  if  he  do,  trespass  quart  cla/usum  /regit  will  lie  against  him. 
Burgess  v.  Hogg,  1  Hay.,  485,  (558.)  S.  1'  Blcurd  v.  Hornilled, 
■1  Hay.  .".(I,  (l';i7.) 

See  (Ejectment — Of  the  title  necessary  to  support  the  action, 
10.) 

IV.   AS  TO  AN  ALIEN  HOLDING  LAUDS. 

1.  Aliens  cannot  hold  land;  and  if  they  purchase,  the  State 
can  take  the  land  from  them.  Bayard  v.  Singleton,  Mar.,  48, 
(42.) 

2.  An  alien  cannot  take  land  by  devise,  the  devise  being  void. 

Unim  rsity  v. ,  2  Hay.,  104,'  (264.)     S.  1'   Gilmour  v.  Kay, 

Ibid,  108,  (265.)  (Overruled,  sec  Miller  v.  Harwell,  3  Murph., 
194) 


ALIO.— IV.— ALIMONY.  47 

3.  An  alien  can  hold  lands  against  the  sovereign,  until  his 
estate  is  divested  by  an  inquisition,  or  by  some  sovereign  act 
ascertaining  his  alienage.     University  v.  Miller,  3  Dev.,  188. 

4.  The  sovereign  cannot  seize  lam  Is  and  prove  the  alienage  in 
pais,  upon  the  trial  of  an  ejectment.     Ibid. 

5.  The  native  born  child  of  an  alien  succeeds  as  heir,  where 
the  estate  of  tin'  ancestor  has  not  been  divested  by  an  office 
found  in  his  life  time.  An  office  found  after  his  death  will  not 
affect  the  estate  of  the  heir.     Ibid. 

6.  The  law  will  not  cast  an  estate  upon  one,  who  cannot  hold 
it;  and  for  this  reason,  an  inquest  of  office  is  not  necessary,  to 
prevent  an  alien  from  succeeding  to  an  estate.     Ibid. 

7.  If  the  heir  be  unable  to  take  by  reason  of  any  disqualifica- 
tion, which  is  not  personal,  as  by  his  alienage,  the  next  in 
degn  sui  ceeda  to  prevent  an  escheat;  but  where  the  disability 
is  personal,  as  by  an  attainder,  the  next  in  degree  cannot  suc- 
ceed, but  the  estate  will  escheat.     Ibid. 

8.  An  alien  cannot  take  by  descent,  curtesy,  dower,  or  other 
title  derived  merely  from  the  law.  And  an  assignment  of  dower 
to  an  alien,  whether  voluntarily  by  the  heir  or  by  the  law  itself, 
is  void,  and  will  not  entitle  her  to  recover  in  ejectment.  Paul 
v.  Ward,  4  Dev.,  247. 

9.  That  part  of  the  40th  section  of  the  State  Constitution, 
which  authorizes  a  "foreigner  who  comes  to  settle  in  this  State,. 
having  first  taken  the  oath  of  allegiance  to  the  State,"  to  "put- 
chase,  or  by  other  just  means  acquire,  hold  and  transfer  lands  or 
other  real  estate,"  is  still  in  force;  though  the  latter  part  of  the 
section,  declaring  when  he  shall  become  a  citizen,  is  repealed  by 
the  Constitution  of  the  United  States.  Bouchev.  Williamson,  3- 
Ired.,  141. 

10.  Independent  of  the  privilege  conferred  by  the  first  part 
of  t1  section  above  referred  to,  an  alien  may  not  only  take  a 
fee  by  purchase,  but  the  estate  remains  in  him.  with  all  the  inci 
dents  belongingto  it  when  taken,  until  and  unless  the  soveriegn, 
who  has  the  right  thereto  because  of  forfeiture,  vests  the  estati 
in  himself  by  an  office  found.  Hence,  an  alien  may,  until  that 
is  dom/.  bring  an  action  of  ejectment.     Ibid. 

11.  An  alien  cannot  take  ami  hold  lands,  as  tenant  by  th< 
curtesy,  and  of  course  such  land  is  net  liable  to  bi  sold  under  a. 

fi.fii.  against  him.     Gopeland  v.  Sauls,  1  Jones,  70. 


ALIMONY. 

See  (Divorce  and  Alimony.) 


48 


ALLUVION.— AMENDMENT.— I. 


ALLUVION. 

1.  Whether  the  doctrine  of  alluvion  applies  to  any  caseT 
where  a  water  boundary  is  not  called  for,  though  the  course  and 
distance  called  for  are  coterminous  with  such  water  boundary, 
quaere:     Commissioners  of  Beaufort  v.  Duncan.  1  Jones,  234. 

See  (Entry  8.) 


AMENDMENT. 


I.  Of  the  writ. 

II.  Of  the  declaration  and  other  plead- 
ings. 
•III.  Of  the  verdict,  judgment  and  exe- 
cution. 


IV.  Of  the  record. 
V.   In  the  Supreme  Court. 
VI.  When  costs  to  be  paid  on  amend- 
ments. 


I.       OF   THE   WRIT. 


1.  A  writ,  improperly  issued  by  the  clerk  in  case,  may  be 
imendi  (1  to  debt,  after  it  is  returned  executed.  Simpson  v. 
Craioford,  Mar.,  55,  (53.) 

2.  Where  a  writ  was  brought  against  an  administrator,  naming 
iiini  as  i  xecutor,  and  there  was  a  plea  in  abatement  for  that  cause, 
the  court  refused  an  amendment  under  the  act  of  1790,  (Rev. 
Code,  ch.  3.)     Coiopet  v.  Edwards,  1  Hay.  19,  (26.) 

3.  A  writ  cannot  he  altered  from  covenant  to  debt,  except  by 
consent  of  parties ;  but  it  is  usual  for  the  attorneys  to  permit 
the  amendment  when  the  mistake  was  made  by  the  clerk. — 
Anonymous,  1  Hay.,  401,  (461.) 

4.  A  writ  cannot  be  amended  so  as  to  convert  a  civil  into  a 
penal  action.      Walton  v.  Kirby,  -J  Hay.,  17-4,  (366.) 

,").  Several  persons  were  sued  in  covenant,  two  of  whom,  on 
over  had,  appeared  not  to  be  parlies  to  the  deed;  the  writ  may 
be  amended  by  striking  out  their  names,  on  payment  of  the 
costs  up  to  the' time  of  the  amendment.  McLure  v.  Burton,! 
Car.  L.  R,  412,  (84.) 

(i.  After  a  judgment  for  the  defendant,  upon  a  plea  of  vnl  tiel 
record  to  a  sci.  fa.,  suggesting  assets  and  judgment  quando,  the 
court  set  aside  the  judgment,  and  permitted  the  plaintiff  to 
amend  his  sci,.  fa.  upon  the  payment  of  costs.  Tear  v.  White,  1 
Murph.,  412. 

7.  A  sci.  fa.  against  heirs  may  be  amended  after  the  plea  of 


AMENDMENT.— I.  49 

nul  tiel  record  pleaded,  on  payment  of  costs  up  to  the  time  of 
the  amendment,      Williams  v.  Lee,  N.  C.  Term  E.,  149,  (578.) 

8.  A  writ  and  declaration  maybe  amended,  upon  the  payment 
of  all  costs,  by  striking  out  the  names  of  nominal  plaintiffs,  and 
inserting  the  name  of  the  party  in  interest  as  administrator  of 
the  person,  in  whose  name,  had  he  been  living,  the  suit  ought 
to  have  been  brought.  Justicesof  Camden  v.  Sawyer,  2  Hawks,  61. 

9.  If  leave  to  amend  the  writ,  so  as  to  change  the  form  of  ac- 
tion be  obtained,  and  the  parties  proceed  on  the  idea  that  the 
amendment  has  been  made,  the  supreme  court  will  so  regard  it, 
though  it  has  not  been  made  on  the  record.  Uff'ord  v.  Lucas,  2 
Hawks.  214. 

10.  In  case  of  the  omission  of  the  name  of  one  of  the  plaintiffs, 
the  writ  may  be  amended  in  the  court  below,  but  not  in  the  su- 
preme court.      Wilcox  v.  Hawkins,  3  Hawks,  84. 

11.  Defects  which  require  an  actual  amendment,  and 
which  are  not  cured  by  the  statute  of  jeofails,  can  be  amended 
only  upon  the  payment  of  all  costs,  unless  it  be  by  the  default 
of  the  officer  and  not  of  the  party.  "Where  the  amount  of  dam- 
ages laid  in  the  writ  was  increased,  the  amendment  was  permit- 
ted ou  the  terms  of  paying  all  costs.  Grist  v.  Hodges,  3  Dev., 
L98. 

12.  The  omission  of  the  christian  name  of  a  defendant  in  a 
warrant  is  a  fatal  defect,  and  such  an  one  as  tin-  supreme  court 
has  no  power  to  supply  by  an  amendment,  Johnson  v.  McGinn, 
4  Dev.,  277. 

13.  The  superior  court  may,  in  its  discretion,  permit  the  plain- 
tiff to  amend  Iris  writ  after  a  verdict  in  his  favor,  and  the 
supreme  court  has  no  right  to  supervise  the  exercise  of  such 
discretion.     Alstonv.  Hamlin,  2.  Dev.  and  Bat.,  11.3. 

14.  A  writ  in  the  name  of  A  B.  President,  ami  C  D  and  E  F, 
Directors  of  a  company,  may  be  amended  in  the  superior  court, 
so  as  to  insert  the  corporate  name  of  the  company,  upon  paying 
all  costs.     Britbain  v.  Newland,  2  Dev.  and  Bat.,  363. 

15.  The  court  has  a  discretionary  power  to  permit  an  original 
writ  to  lie  amended  by  adding  to  it  the  seal  of  the  court,  where 
this  has  been  omitted  before  the  writ  issued.  Clark  v.  HeUen,  1 
Ired.,  421. 

16.  The  courts  below  have  the  power,  at  their  discretion,  and 
on  such  terms  as  they  may  prescribe,  to  add  new  plaintiffs  to 
chose  mentioned  in  the  writ  and  original  di  claration.  Green  v. 
Deberry,  2  Ired,  344. 

17.  A  superior  court  lias  the  power  to  allow  an  ami  raiment  in 
a  form'!-  proceeding,  so  as  to  insert  the  names  of  infant  heirs  in 
the  order  appointing  them  a  guardian  md  in  the 
writofsci. /a.  issuing  against  them;  and  tit  exercis<  i  fthepower 
is  a  discretionary  one  which  cannot  be   revised  in  the  supreme 


50  AMENDMENT.— I.— II. 

court.     Campbell  v.  Barnhill,  1  Jones,  557.  .  S.  P.  White  v.  Stan- 
ton, 3  Jones,  41. 

18.  Where  a  corporation  has  been  sued  and  brought  into  court 
by  a  wrong  name,  the  court  has  power  to  order  an  amendment 
by  striking  out  that  and  inserting  the  right  name.  Lane  v.  Sea-, 
board  and  Roanoke  Railroad  Company,  5  Jones,  25. 

19.  A  court  has  no  authority  under  the  power  to  amend  pro- 
cess, to  order  the  issuing  of  a  new  writ  to  bring  in  a  new  de- 
fendant, during  the  pendency  of  a  suit.  Camlin  v.  Barnes,  5 
Jones.  296. 

20.  Although  the  superior  court  has  a-  discretionary  power  to 
allow  an  amendment  of  the  writ  after  a  verdict,  so  as  to  increase 
the  damage  claimed,  yet  it  will  exercise  the  power  with  caution 
in  a  case  where  the  measure  of  the  damage  is  certain;  and  there 
is  no  certain  criterion  by  which  to  show  that  there  was  a  mis- 
take or  misapprehension  in  the  issuing  of, the  writ.  Ashe  v. 
DeRosset,  8  Jones,  240. 

II.  OP  THE  DECLARATION  AND  OTHER  PLEADINGS. 

1.  A  demurrer  may  be  withdrawn  when  a  material  fact  is 
necessary  to  be  introduced  by  plea,  and  the  pleadings  may  be 
amended.     Hostler  v.  Roan,  2  Hay.,  138,  (309.) 

2.  After  a  new  trial  is  granted,  the  court  may  permit  the 
pleadings  to  be  amended  on  both  sides.  Murphy  v.  Guion,  2 
Hay.,  Itf2,  (347.) 

3.  It  is  not  of  course,  after  a  cause  is  continued,  to  amend  the 
pleadings;  the  necessity  for  so  doing  must  be  shown  to  the 
court  by  affidavit  or  otherwise.  Blount  v.  Shepard,  2  Hay.,  23(1 
(409.) 

4.  A  special  demurrer  being  filed  to  a  declaration  and  sustain- 
ed, the  court  will  give  leave  to  amend  on  the  payment  of  costs. 
Davis  v.  Evans,  1  Car.  L.  It,  499,  (111,.)  S-.  C.  2  Murph.,  202. 

5.  Where  a  plaintiff  declared  upon  a  warranty,  the  court, 
being  of  opinion  that  he  could  not  recover  upon  that  declaral 
tin]),  permitted  him,  upon  terms,  to  amend  by  adding  a.  count 
for  money  had  and -reserved     Lanier  -v.  Auld,  1  Murph.  138. 

6.  Where  a  counsel,  who  had  been  instructed  to  defend  an 
action  on  a  bond,  upon  the  ground>that  it  was  given  to  comj 
pound  a  felony,  and  he  on!\  pleaded  "illegal  consideration,! 
which  was  adjxrdged  bad  as  1  icing  too  general,  an  amendment* 
of  the  plea  was  permitted  without  costs.  Boyt  \~.  Cooper,  2 
Murph.,  286,  S.  C.  1  Car.  L.  R.,  277,  (28.) 

7.  Where,  onapetition  for  an  injury  done  by  the  erection  of  a 
mill,  there  was  a  verdict  and  judgment  against  all  the  defen- 
dants, one  of  whom  was  dead  al  the  time,  and  a  writ  of  error 
coram  nobis  was  brought  for  that  error  in  fact,  it  was  held  to  be^ 
proper  in  the  court  to  allow  an  amendment  nunc  pro  tune  by 


AMENDMENT.— II.-III.  51 

suggesting-  the  death  of  the  deceased  defendant,  upon  the  pay- 
ment of  costs,  and  thereupon  to  dismiss  the  writ  of  ei»ror. — 
Wihvii  v.  Myers,  4  Hawks,  7& 

8.  All  amendments,  made  either  by  consent  or  by  leave  of  the 
court,  ought  to  appear  on  the  record.  Shearin  v.  NeamHe,  1 
Dev.  &  Bat,  3. 

9.  The  superior  court,  in  which  a  suit  is  pending,  has  the  ex- 
clusive discretionary  power  of  permitting  amendments  in  the 
process  and  pleadings,  and  no  appeal  lies  to  the  supreme  court 
from  the  exercise  of  such  power.     Quiett  v.  Boon,  5  Ired.,  9. 

10.  Where  there  was  an  order  to  amend,  and  the  subsequent 
proceedings  in  the  case  are  based  upon  the  assumption  that  the 
amendment  has  been  made,  the  course  is  to  consider  the  order 
as  standing  for  the  amendment  itself.  Holland  v.  Crow,  12  Ired., 
275. 

11.  The  court  below  has  no  right  to  allow  an  amendment  to  a 
declaration  in  ejectment  by  adding  a  count  on  the  demise  of  a 
person  who  died  since  the  commencement  of  the  action,  although 
he  was  alive  at  the  date  of  the  demise  in  the  proposed  count. — 
Skipper  v.  Lrnuon,  Busk,  189. 

12.  The  refusal  of  the  coart  to  permit  a  declaration  in  eject- 
ment to  be  amended  on  the  motion  of  the  defendant's  counsel, 
By  striking  out  a  count  on  the  demise  of  one  of  the  lessors, 
though  made  at  the  instance  of  such  lessor,  is  no  ground  for  ex- 
emption on  the  part  of  the  defendant  Hassell  v.  WalJcer,  5 
•Jones,  270. 

13.  Proceedings  in  petitions  to  lay  out  roads  are  within  the 
meaning  of  the  Rev.  Code,  ch.  3,  sec.  1,  which  authorizes  courts 
to  amend  pleadings,  &g.,  in  "any  action,"  at  anytime  before 
judgment     Pridj.n  v.  Anders,  7  Jones,  257. 

See  (Ejectment — O'  the  declaration  4.) 

III.       OF   THE    VERDICT,    JUDGMENT   AND   EXECUTION. 

t.  Where,  in  entering  up  a  verdict,  a  mistake  was  made  in 
computing  interest,  and  judgment  was  entered  for  less  than  the 
plaintiff  was  entitled  to,  which  mistake  was  not  discovered  until 
the  next  term  of  the  court,  leave  to  amend  was  refused,  because 
then  was  nothing  to  amend  by,  and  to  alter  it  would  be  to 
make  a  new  verdict  for  the  jury.  BaJcer  v.  Moore,  2  Car,  L.  E., 
6  17,  I  ' 

2.  A  verdict  that  "  the  statute  of  limitations  does  not  bar," 
is  not  responsive  to  the  issue,  and,  therefore,  erroneous;  but  it 
is  such  a  minute  of  the  verdict,  as  to  enable  the  superior  court 
tn  amend  it;  and,  although  the  supreme  court  cannot  make  the 
correction,  it  will  stay  the  judgment,  until  it  is  corrected  in  the 
court  below.     Dowellv.  Vannoy,  3  Dev.,  43. 

3.  Defects  in  judgments  may  be  amended,  even  after  a  writ 


52  AMENDMENT.— III. 

of  error;  and  executions  may  also  be  amended  after  they  have 
been  acted  on,  so  as  to  render  them  a  justification  to  the  officer 
where  otherwise  they  would  not  be.  Bender  v.  Askew,  3  Dev.. 
149. 

4.  Where  the  writ  waste  answer  the  plaintiff  of  aplea  of-debt, 
for  $213  32,  and  the  declaration  was  in  debt,  qui  turn,  for  $160, 
it  was  held,  that  under  the  statute  5  Geo.  1,  cL  13,  which  was 
declared  to  be  in  force  by  the  art  of  1777.  the  variance  was 
cured  by  a  verdict  for  the  plaintiff.  West  v.  Batledge,  I 
Dev.,  31. 

5.  A  general  verdict  upon  a  declaration,  containing  a  defec- 
tive count,  will  not  entitle  the  plaintiff  to  judgment.  But  when 
it  appears  that  the  evidence  applied  only  to  the  good  count,  the 
verdict  will  be  amended.  Thus,  where  in  debt,  on  the  statute  of 
usury,  one  count  was  for  double  the  sum  lent,  and  another  for 
double  the  amount  lent  and  interest  received,  and  the  verdict 
was  for  the.  first  sum,  it  was  applied  to  the  first  count.     Ibid. 

•  i.  Where  the  clerk  of  a  superior  court  has  omitted  to  affix  the 
seal  of  his  court  to  writs  of  ft.  fa.  and  vend,  expo.,  issued  cut  of 
his  county,  the  court  may,  at  a  subsequent  term,  order  the  clerk 
to  affix  its  seal  to  the  said  executions  mine  pro  tunc,  in  order  to 
protect  a  purchaser  of  land,  sold  under  them,  where  no  third 
person  claiming  under  one  of  the  parties  to  the  execution  is  to 
be  affected  thereby.     PurceU  v.  McFarland,  1  Ired..  34. 

7.  When  a  clerk  issued  an  execution,  tested  on  the  5th  Mon- 
day after  the  4th  Monday  of  September,  1833,  and  in  the  57th 
year  of  our  independence,  and  endorsed  thereon,  that  the  exe- 
cution actually  issued  on  the  5th  of  February,  1833,  ami  the  cor- 
oner also  endorsed  that  it  was  levied  on  the  21st  of  February, 
1833,  the  court  must  see  that  the  dating  of  the  writ,  as  to  the 
christian  era,  was  a  mistake  of  the  clerk,  and  will  correct  it  ac- 
cordingly.    Cherry  v.  Woodard,   1  [red.,  438. 

8.  An  amendment  of  an  execution  will  not  be  allowed,  if  it, 
will  prejudice  the  rights  of  third  persons.  Bank  of  <  '<~tpc  Fear 
v.   Williamson,  2  lred.,  147. 

9.  The  superior  court  has  no  right,  on  the  trial  before  it,  to 
•permit  a  constable's  return,  of  a  justices  execution  levied  on  land, 
made  to  the  county  court,  to  be  amended.  Smith  v.  Low,  2 
Ired.,   -b">7. 

10.  Whereupon  a  writ  of  recordari  judgment  was  rendered  in 
the  superior  court,  against  the  plaintiff  in  the  recordari,  and  the 
clerk  entered  the  jriclgment  againsl  the  sureties  for  the  costs' 
only,  and  the  court,  at  a.  subsequent  term,  directed  that  the 
judgment  should  be  entered  nuncprotunc  against  the  sun-ties 
for  the  debt  as  well  as  the  costs;  it  was  held,  that  the  court  laid 
the  power  to  do  so,  if  in  their  discretion  they  thought  it  right, 
and  the  supreme  court  could  not  revise  such  discretionary 
power.     Brady  v.  Beason,  6  Ired.,  425. 


AMENDMENT.— III.  53 

11.  A  judgment  nunc  pro  tunc  is  a  judgment  of  the  term  of 
the  court,  at  which  the  court  making  the  amendment  says  it 
ought  to  have  been  rendered.      Bradhurst  v.  Pearson,  10  Ired., 

55: 

12.  An  action  for  a  joint  battery  against  four  persons  was 
tried  ;  and,  by  agreement  of  counsel,  the  verdict  was  to  be  ren- 
dered during  the  adjournment  of  the  court;  and  during  such 
adjournment  the  jury  returned  their  verdict,  finding  all  the  de- 
fendants guilty,  and  assessing  separate  damages  against  each, 
and  tlii-  clerk  entered  the  verdict  accordingly.  When  the  court 
met  after  the  adjournment,  the  jury,  being  informed  that  they 
had  dmie  wrong,  in  assessing  separate  damages,  were  permitted 
to  amend  their  verdict  by  finding  damages  against  all  the  de- 
fendants jointly  ;  it  ints  hehh  that  the  court  acted  right  in  per- 
mitting the  amendment.     Curtis  v.  Smart,  10  Ired.,  97. 

13.  Where  an  amendment  is  moved  for,  which  the  judge  has 
power  to  allow,  and  he  refuses  to  hear  the  motion  or  the  evi- 
dence to  support  it,  on  the  ground  that  he  has  no  power  to  allow 
the  amendment — such  refusal  is  error,  which  the  supreme  court 
will  correct  ;  but  it  is  otherwise,  where  he  declines  to  exer- 
cise the  power  on  other  grounds.  Therefore,  where  on  applica- 
tion to  amend  the  entry  of  a  verdict  found  at  a  former  term,  on 
an  issue  of  <l<  ffisavit  vet  non,  by  inserting  the  tenor  of  the  will, 
the  judge  refused  to  tear' evidence  in  support  of  the  applica- 
tion, on  the  ground  that  he  had  no  power  to  allow  the  amend- 
ment ;  it  was  held,  that  tin:'  refusal  was  error,  the  judge  having 
the  power  which  he  supposed  he  had  not.  Freeman  v.  Morris, 
Busl,..  287. 

14.  Where  a  sum  has  been  erroneously  found  for  a  plaintiff  in 
the  verdict  of  the  jury,  and  the  plaintiff  offers  to  amend  by  re- 
mitting it,  but  does  not  do  so,  it  will  not  avail  to  cure  the 
error.     Dula  v.  Cowles,  4  Jones,  510. 

15.  A  judgment  by  default  upon  a  specialty  for  the  want 
of  a  plea,  entered  by  the  clerk  in  court,  upon  his  calculation 
of  interest,  was  an  office  Judgment,  and  the  court  had  the 
power  to  correct  a  mistake  in  the  clerk's  calculation  of 
interest,  at  any  time,  upon  motion.  CPriffin  v.  Hinson,  (J  Jones, 
154. 

16.  Where  in  the  trial  of  an  action  of  detinue  for  a  slave,  in  the 
superior  court,  a  verdict  was  rendered,  subject  to  the  opinion  of 
tin-  judge,  as  to  the  law  applicable  to  the  case,  and  on  an  appeal 
to  the  supreme  court,  those  questions  were  decided  in  favor  of 
the  plaintiff,  but  in  making  up  the  record  of  the  court  below,  it 
was  omitted  to  set  out  the  names  of  the  jurors,  and  the  verdict 
was  left  blank  as  to  the  value  of  the  slave  and  the  damages  for' 
his  detention  ;  if  was  held,  that  the  superior  court  might  amend 
the  record,  as  to  the  verdict  and  judgment  >t  toe  pro  tunc,  and  to 
enable  it  to  do  so,  it.  might  order  an  enquiry  as  to  the  value  of 


54  AMENDMENT.—  III.  -IV. 

the  slave  and  damages  for  the  detention.     Freshwater  v.  Balcer* 
7  Jones,  404. 

17.  Where  a  fi.  fa.  on  a  justice's,  judgment  was  levied  on  land, 
and  returned  to  the  county  court,  where  an  order  was  made  for 
the  sale  of  the  land,  which  was  sold  under  a  rind.  expo,  issued 
thereon  ;  it  was  held,,  that  the  county  court  had  no  power  at  a 
subsequent  term,  to  amend  by  setting  aside  the  fi.  fa.  on  the 
justice's  judgment.     Bennett  v.  Taylor,  8  Jones,  281. 

IV.        OF    THE    KECORD. 

1.  The  superior  court  may  amend  the  record  of  its  proceed 
ings  at  any  time  during  the  same  term,  and  may  thus  obviate 
any  objections  made  to  the  record  of  that  term.  State  v.  Cul- 
koon,  1  Dev.  &  Bat.,  374. 

2.  Although  one  court  casmot  take  any  posterior  action  in  a 
cause,  after  it  has  been  removed  to  another  for  trial,  yet  it  may 
afterwards  amend  by  supplying  an  omission  in  a  record,  which 
occurred  prior  to  the  removal  ;  and  it  may  then  scud  a  now 
transcript  of  the  amended  record  to  the  court  to  which  the  cause 
was  removed.     State  v.  Meid,  1  Dev.  A:   Bat.,  377. 

3.  Supplying  defects  in  a  transcript,  either  by  procuring  a 
new  one,  or  by  making  insertions  in  the  one  already  sent,  is  not 
an  amendment  of  the  court,  to  which  it  is  sent.     Ibid. 

4.  Every  court  1  >as  a.  right  to  judge  of  its  own  records  and 
minutes  ;  and  if  it  appear  satisfactorily  to  it  that  an  order 
was  actually  made  at  a  former  term,  and  omitted  to  be  entered 
by  the  clerk,  it  may  at  anytime  direct  such  order  to  be  en- 
tered on  the  records,  as  of  the  term  when  it  was  made.  State  v. 
McAlpin,  4  Ired.,  140. 

5.  tn  a  suit  pending  in  one  court,  oral  evidence  is  inadmissi- 
ble to  supply  a  defect  in  the  record  of  another  court,  by  showing 
that  an  order  was  made  or  proceeding  had,  in  that  court,  which 
the  clerk,  by  mistake,  or  through  negligence,  or  from  other 
cause,  omitted  to  enter  on  the  record.     Ibid. 

6.  A  court  lias  a  right  to  amend  the  records  of  any  preceding 
term,  by  inserting  what  has  been  omitted,  either  by  tee  act  of 
the  clerk  or  of  the  court  ;  and  a  record,  so  amended,  stands  as  if 
ii  had  never  been  defective,  or  as  if  the  entry  had  been  made  at 
the  proper  term.  Galloway  v.  McKeithen,  5  Ired.,  12,  S.  P  ; 
State  v.  King,  '>  Ired..  203. 

7.  Where  a  court,  in  the  exercise  of  its  discretion,  directs  that 
an  order  previously  made  by  them  should  be  stricken  out,  it  is 
iUr  same  as  if  such  order  had  never  existed.  Williams^.  Floyd, 
5  Ired..  649. 

8.  Where  thecounty  court,  upon  affidavits,  ordered  an  amend- 
ment of  its  records,  and  the  party  aggrieved  appealed  to  the 
superior  court,   it   was  the  duty  of  that   court  to  decide  upon 


AMENDMENT.— IV.  55 

■the  question  of  amendment,  and  if  the  superior  court  dismissed 
such  appeal  without  deciding  upon  the  merits,  its  judgment 
was  erroneous  and  must  be  reversed.  Slade  v.  Burton.,  6  Ired., 
207. 

9.  The  superior  court  may,  upon  such  an  appeal,  not  only  re- 
view the  decision  of  the  county  court,  on  the  affidavits  there- 
filed,  but  may  hear  further  evidence,  as  to  the  propriety  of  the 
order  of  the  county  court.     Ibid. 

10.  A  court  of  record  has  a  discretionary  power  to  amend  its 
records,  at  any  time,  nunc  fro  tuns,  and  it  is  the  ditty  of  the 
cleric,  not  simply  to  enter  such  order  of  amendment,  but  actual- 
ly to  make  the  amendment,  as  directed -by  the  court.  Jones  v. 
Lewis,  8  Ired.,  70. 

11.  Every  court  has  the  control  of  its  own  records,  and  may 
alter  or  amend  them,  or  refuse  to  do  so,  at  its  discretion.  Bag- 
ley  v.  Wood,  12  Ired.,  90. 

12.  Where  the  county  court  exercises  its  discretion,  in  relation 
to  the  amendment  of  its  records,  its  decision  is  subject  to  an  ap- 
peal to  the  superior  court,  and  is  thereby  vacated,  and  the  trial 
in  the  superior  court  is  de  novo  ;  and  upon  such  trial  the  court 
may  hear  any  additional  evidence  which  may  be  offered  by  the 
parties.     Ibid. 

13.  Whether  the  decisioadn  the  superior  court  is  one  purely 
in  the  discretion  of  the  judge,  or  one  which  is  subject  to  review 
in  the  supreme  court,  the  judgment  is  final  and  conclusive,  be- 
cause the  supreme  court  is  a  court  for  the  correction  of  errors  in 
matters  of  law,  and  not  matters  of  fact.     Ibid. 

14.  Courts  have  power  to  amend  their  process  and  records, 
notwithstanding  such  amendment  may  affect  existing  rights. 
Green  v.  Cole,  13  Ired,.  425. 

15.  A  court  has  no  power  to  allow  an  amendment,  by  which 
the  rights  of  persons,  not  parties,  will  be  affected  ;  for  example, 
to  amend  a  fi.  fa.  so  as  to  make  it  an  alias,  and  give  it  rela- 
tion back  ;  and  other  like  cases.  Nor  has  a  court  power,  1  >y  al- 
lowing an  amendment,  to  defeat  or  evade  the,  provisions  of  a 
statute  ;  for  example,  to  allow  a  constable's  return  of  a  levy  on 
land  to  ho  amended,  by  inserting  a  particular  description  of  the 

} iremises,  as  required  by  statute,  the   original   return  being  de- 
fective; and  so  in  like  cases.     PhiUipse  v.  Higdon,  Busb.  380. 

16.  livery  court  has  ample  power  to  permit  amendments  in 
the  process  and  pleadings  pending  before  it.  So  it  has,  after  a 
wit  is  determined,  ample  power  to  amend  its  own  record,  that  is, 
the  journal  or  memorial  of  its  own  proceedings,  kept  by  the 
court  or  the  cleric,  by  inserting  what  has  been  omitted,  or  stri- 
king out  what  has  been  erroneously  entered.     Ibid. 

17.  Where  an  order  has  been  made  for  amending  a  record, 
such,  amendment  may  be  made..at  any  time  afterwards.  Mar- 
sh'ii!  v.  Fish  r,  1   Fones,  111. 


50  AMENDMENT.— IV. 

18.  The  county  court  has  no  power  to  authorize  an  amendment 
in  the  return  by  a  constable  of  a  levy  of  a  justice's  execution  up- 
on land,  after  a  sale  of  the  premises.  Gibbs  v.  Brooks,  1  Jones, 
448. 

19.  The  superior  court  has  a  discretionary  power  to  order  an 
amendment  of  its  records,  by  drawing|up  and  entering  in  proper 
form  its  orders  and  decrees  from  the  loose  minutes  of  the  clerk, 
and  allowing-  a  commissioner  of  the  court  to  file  his  report  ;  and 
when  the  court  acts  in  such  discretion,  its  decisions  cannot  be 
reviewed  in  the  supreme  court.  Pendletonv.  Pendleton,  2  Jones, 
135. 

20.  Upon  a  question  of  the  amendment  of  its  record,  so  as  to 
make  the  minutes  of  a  former  term  set  forth  truly  its  own  trans- 
actions, a  court  is  not  bound  by  the  ordinary  rules  of  evidence 
in  ascertaining  the  facts,  but  may  resort  to  any  proof  that  is  sat- 
isfactory to  it.  Hence,  an  ex  parte  affidavit,  taken  before  a  jus- 
tice, may  in  some  eases  be  proper.  Maiio  v.  Whitson,  2  Jones, 
231. 

21.  Lapse  of  time  will  not  take  away  from  a  court  the  power 
to  amend  its  records  ; :  for  such  lapse  of  time  is  in  no  way  im- 
portant, further  than  that  it  increases  the  difficulty  of  procuring 
adequate  testimony.     Ibid. 

22.  The  county  court  has  no  right  to  amend  its  record  by 
striking  out  an  entry  of  the  surrender  of  a  principal  by  his  bail, 
made  in  open  court,  on  a  previous  day  of  the  term,  when  such 
entry  stated  truly  what  had  been  done.  Underwood  v.  McLmi- 
rin,  4  Jones,  17. 

23.  Every  court  has  the  power  to  amend  its  own  records,  so 
as  to  make  them  conformable  to  the  truth.  Parsons  v.  McBride, 
4  Jones,  99. 

24.  Where  the  parties  to  a  suit  agreed  to  submit  their  case  to 
arbitration,  and  that  the  award  should  be  a  rule  of  court,  but  only 
the  first  part  of  the  agreement  was  entered  of  record  ;  it  ivas 
held  that  the  court  in  winch  the  suit  was  pending  had  the  power 
to  amend  the  record  nunc  pro  tunc,  so  as  to  make  it  show  that 
the  award  was  to  be  a  rule  of  court.  Klrkland  v.  Mar.gum,  5 
Jones,  313.* 

'25.  All  courts  have  the  inherent  power  to  revise  and  amend 
their  records,  and  make  them  conform  to  the  truth.  Ashe  v. 
Streator,  8  Jones  256. 

26.  The  power  of  the  county  courts  to  amend  their  records  is 
a  discretionary  power,  subject,  however,  to  the  revisal  of  the  su- 
perior courts  upon  an  appeal,  but  the  supreme  court  has  no 
Sower  to  examine  into  the  correctness  of  the  exercise  of  such 
iscretion  in  the  courts  below.  Where,"  however,  the  superior 
court  decided  erroneously  that  the  county  court  had  no  power 
to  make  an  amendment,  it  was  held  that  the  supreme  court  could, . 
on  an. appeal,. revise  and  correct  such  error.     Ibid. 


AMENDMENT.— V. 


V.        IN    THE    S!  I'll!. ME    COURT. 


1.  An  amendment  will  not  be  allowed  at  the  term,  at  which  a 
cause  is  decided  in  the  supreme  court,  on  the  motion  of  one 
party  without  notice  to  the  adverse  party.  Cobb  v.  Wood,  1 
Hawks,  95. 

2.  The  want  of  a  declaration,  when  it  appears  on  the  record 
sent  to  the  supreme  court,  is  an  error  which  the  court  cannot 
overlook,  nor  can  it  be  amended  or  remedied  but  by  consent. — 
WHMxtmson  v.  Rainey,  3  Hawks,  9. 

3.  Under  the  act  of  1824,  the  supreme  court  can  make  only 
such  amendments  as  the  court  below  might  have  made;  and  it 
seems  that  no  substantial  amendments  will  be  allowed  in  the 
supreme  court,  because  if  such  were  made,  the  opposite  party 
ought  to  have  leave  to  amend  his  pleadings,  which  might  make 
new  issues,  which  there  is  no  tribunal  to  try.  Matlock  v.  Gray, 
4  Hawks,  1.  S.  P.  Glisson  v.  Herring,  2  Dev..  156.  .  (For  the 
power  of  the  supreme  court  to  allow  amendments,  see  Kev. 
Code,  ch.  4,  and  ch.  33,  sec.  17.) 

4.  Where  the  verdict  exceeds  the  amount  of  damages  laid  in 
the  writ,  the  plaintiff  may,  in  the  supreme  court,  amend  by  en- 
larging the  sum  in  the  declaration,  upon  the  payment  of  all 
costs.      Grist  v.  Hodges;  3  Dev.,  198. 

5.  The  supreme  court  is  bound  to  admit  amendments  which 
would  be  of  course  in  the  court  below,,  ami  which  do  not  involve 
the  merits;  but  it  is  not  authorized  to  direct  them  to  be  made  in 
the  court  below,  nor  to  make  any  but  such  as  are  necessary  to 
support  the  judgment  of  the  superior  court  on  a  verdict  on  the 
merits.     Ibid. 

6.  No  amendments  can  be  permitted  in  the  supreme  court, 
which  would  affect  the  judgment  below,  or  upon  which  ordina- 
rily a  new  plea  is  admitted.     Ibid. 

7.  Verdicts  which  are  defective  in  form,  from  the  misprision 
of  the  clerk,  will  be  corrected  in  the  supreme  court,  if  the  sub- 
stance is  intelligible.     Ibid. 

8.  A  conclusion  in  a  warrant  for  a  penalty,  against  the  form 
of  the  statute,  when  it  should  be  against  the  form  of  the  stat- 
utes, is  a  substantial  defect,  which  is  not  cured  by  the  verdict. 
But  the  supreme  court,  under  the  1st  and  10th  sections  of  the 
3rd  chapter  of  the  Revised  Statutes,  may  amend  the  defect,  as  it 
does  not  change  the  issue  between  the  parties,  and  is  according 
to  the  right  and  justice  of  the  matter  found  by  the  jury.  State 
v.  Muse,  4  Dev.  and  Bat.,  319.  (See  Rev.  Code,  ch.  3,  sec.  1 
and  10.) 

9.  Where  the  damages  recovered  in  the  court  below,  in  an 
action  on  a  warranty,  exceeded  the  damages  laid  in  the  writ  and 
declaration,  and  the  variance  was  not  discovered  in  that  court, 
but  the  defendant  here  insisted  upon  it  on  a  motion  in  arrest  ot 


58  AMENDMENT.  — V._VI. 

judgment,  the  court  permitted  the  plaintiff  to  amend  the  record 
by  striking  out  the  excess  of  damages  in  the  verdict,  uponhis  pay- 
in--  the  costs  ofthe  appeal.     WiMamson  v.  Ganaday,  -Hired.,  349. 

10.  The  plaintiff  having  recovered  one  thousand  dollars  dam- 
ages, when  in  the  writ  and  declaration  they  were  laid  at  only 
two  hundred,  it  was  held,  that  an  amendment  might  be  allowed 
in  the  supreme  court  of  the  writ  and  declaration,  so  as  to  state 
the  damages  at  one  thousand  dollars,  the  plaintiff  paying  all  the 

•  costs  of  the  suit,     Clayton,  v.  Liverman,  7  Ired.,  92. 

11.  Where  more  damages  are  recovered  than  are  demanded. 
the  plaintiff  will  be  permitted  in  the  supreme  court  to  remit  the 
excess,  and  have  judgment  for  the  proper  sum,  upon  paying  the 
costs  of  that  court.     Harper  v.  Davis,  9  Ired.,  44. 

12.  An  amendment  in  a  warrant  before  a  justice,  for  a  penalty, 
will  be  permitted  in  the  supreme  court  upon  the  payment  of  all 
costs  by  the  plaintiff.  Commissioners  of  Washington  v.  Frank,  1 
Jones.  436. 

13.  The  supremo  court  may  allow  tin-  plaintiff  to  amend  by 
entering  a  remittitur  for  the  interest  erroneously  given  upon  the 
damages  assessed  in  an  action  of  trespass  quare  clauswm  j'rvijit, 
upon  I 'no  payment  of  the-costs  of  that  court.  Connelly  v.  Mc- 
Neil. 2  Jones,  51. 

14.  Where  the  effect  of  an  amendment  in  the  supreme  court 
would  be  to  reverse  a  judgment  ofthe  court  below,  rightly  given, 
in  favor  of  the  defendant,  and  to  enter  a  judgment  in  the 
former  court,  in  favor  of  a  different  party  plaintiff,  it  will  be 
refused.     Jus/ins  of  Tyrrell  v.  Simmons,  3  Jones,  187. 

15.  Whore  the  demise  in  a  declaration  in  ejectment  had  ex- 
pired before  the  trial  in  the  courl  below,  and  the  plaintiff's 
lessor  had  obtained  judgment  wifbxrtrt  the  objection  being  no- 
ticed, the  supreme  court  allowed  an  amendment  by  extending 
the  term  as  a  matter  of  course,  without  costs.  Baxter  v.  Baxter, 
3  Jones.  303. 

See  (Practice— Appearance,  and  proceedings  against  one  of 
several  defendants,  (i. ) 

vi.    'when  costs  to  be  paid  ox  amendments. 

1.  If  a  suggestion  of  death  be  made  and  not  entered  by  the 
clerk,  and  a  supersedeas  and  writ  of  error  be  moved  for,  and  an 
amendment  be  now  permitted  mmc  fro  tunc  to  avoid  the  error, 
it  shall  be  upon  the  payment  of  costs.  Paniiel  v.  McCrawley,  2 
Hay,  177,  (371.) 

2.  The  court  may,  under  certain  circumstances,  set  aside  a  ver- 
dict, and  permit  an  amendment  by  allowing  the  plaintiff  to  add 
a  new  count,  upon  the  payment  of  all  eosts.  Wilkmgs  v.  Mur- 
phey,  2  Hay.,  2*2,  (460.) 

See  (Amendment — of  tho  writ,  5-6-7-8-11-14-16.)  (Amend- 
ment— Of  the  declaration  and  other  pleadings,  4-5-6-7.); 
{Amendment — In  the  supreme  court,  4-9-10-11-12-13-15.) 


APPEAL— I  59 

APPEAL. 


I.  From  a  justice's  judgment, 
II.  When  allowed  from  the  county  to 
the  superior  court. 
III.  When  tlie  transcript  must,  be  filed. 
If.  Effect  of  an  appeal  fiom  the  county 
to  the  superior  court. 


V.  Of  the  appeal  bond  and  die  sureties 

thereto. 
VI.  From  the  superior  to  the  supreme 
court — When  allowed  aad  its  ef- 
fect. 


I.       FROM    A    jrSTR'KS    JTOGMKXT. 


1.  An  appeal  lies  from  the  judgment  of  a  justice  to  the  county 
court,  arid  then  from  the  judgment  of  that  court  to  the  suferror 
court.  Commissioners  <>/'  Tarborough  Bridge  v.  Whitaker,  t 
Murph..  184 

2.  The  justice,  who  gives  a  judgment  from  which  an  appeal  is 
prayed,  cannot  sign  the  name  of  a  person  as  a  surety  to  the  ap- 
peal bond,  in  the  absence  of  such  person,  though  at  his  request, 
because  the  agency  u<  do  so  is  inconsistent  withhis  character  as 
judge;  and  nojudgmenl  can  be  rendered  against  the  surety  on 
such  bond.      Weaver  v.  Parish,  1  Hawks,  319. 

3.  On  an  appeal  from  a  justice's  judgment,  the  surety  to  the 
appeal  is  not  bound,  though  he  sign  as  such,  unless  the  justice 
granting  the  appeal  sign  his  name,  as  a  witness  to  the  signa- 
ture of  the  surety—  /Vr,./  v.  Hardisan,  -  Hawks,  532. 

4.  When  a  justice  f<  rgets  to  return  an  appeal  at  the  next  term 
after  the  judgment,  it  is  pi'  rper,  upon  notice  to  the  appellee,  tw 
return  and  place  it  on  the  ducket  at  a  subsequent  term.  Lamcm 
v.  Gilch-ist,  1  Dev.  17G. 

5.  An  appeal  from  a  justice  granted*  on  security  given  two 
days  after  the  judgment,  will  not  be  dismissed,  although  allowed 
withoui  affidavits,  and  although  no  entry  appears,  that  at  the 
trial,  time  was  given  to  the  plaintiff  to  find  sureties.     Ibid. 

(!.  The  sureties  for  an  appeal  from  the  judgment  of  a  justice 
ire  sureties  to  the  action,  and  are  bound  to  satisfy  any  judgmeril 
which  rnay  be  rendered  in  it  against  the  appellant.  Dolby  v.  Jones, 
2  Dev.  in;'). 

7.  Where  the  judgment  of  a  justice  was  affirmed  in  thecounty 
court,  and  the  appellant  appealed  to  the  superior  court  and  gave 
other  sureties,  it  was  held  that  the  sureties  to  the  first  appeal 
were  bound  for  the  judgment  rendered  against  the  appellant  in 
the  latter  court.     Ibid. 

8.  Where  an  appeal  has  been  taken  from  the  judgment  ofa 
justice,  the  parties  may  by  consent,  while  the  papers  remain  in 
the  hands  of  the  justice,  set  aside  the  appeal^  and  have  a  new 
ferial.      Wardens  of  the  Poor  v.  Cope,  ~i  [reel,  4  !. 

9.  Where  there  is  a  joint  judgment  before  a  justice  against 


CO  APPEAL.— I. -11. 

two  defendants  and  one  only  appeals,  the  appeal  will  be  dis' 
missed  on  motion,  no  matter  what  steps  have  been  taken  in  the 
cause  after  the  filing  of  the  appeal  in  court.  Smith  v.  Cunning? 
ham,  8  Ired.,  460.  (This  rule  altered — See  Rev.  Code,  ch.  62, 
sec  23.) 

10.  On  an  appeal  from  the  judgment  of  a  justice,  if  the  defen- 
dant-do  not  plead  so  that  an  issue  may  lie  made  up,  the  court 
may  render  judgment  either  with  or  without  the  verdict  of  a 
jury.     Bamsour  v:  Mirshaw;  8  ired.,  480. 

11.  Where  there  is  a  judgment  against  two  or  more,  an  appeal 
cannot  he  granted  unless  all  the  defendants  join  in  it.  Kelly  V. 
M&se,  11  Ired.,  182.  (One  alone  may  now  appeal,  see  Rev.  Code, 
eh.  62,  sec.  23.«) 

12*  Where  a  judgment  bearing  a  certain  date  was  signed  by 
one  justice,  and  at  the  foot  of  the  judgment  there  was  a  grant  of 
an  appeal,  bearing  no  date,  but  signed  by  a  different  justice  ;  it 
was  held,  that  this  afforded  no  ground  for  presuming  that  the 
judgment  and  appeal  were  given  at  different  times.  McMillan 
v.  D  vis,  7  Jones,  218. 

13.  Where  an  appeal  from  a  justice's  judgment  had  pended 
for  several  terms  in  the  county  court,  before  a  motion  to  dismiss 
for  irregularity,  in  taking  the  appeal,  was  made,  and  had  after- 
wards pended  several  terms  in  the  superior  court  before  a  like 
motion  was  there  made;  it  was  held,  that  the  long  aquiescense 
waived  the  irregularity,  and  that  the  motion  to  dismiss  was 
properly  refused.     Ibid. 

14.  Where  a  plaintiff,  in  a  warrant  before  a  justice,  failed  to 
appeal  on  a  judgment  rendered  against  him,  at  the  time  of  the 
rendition  of  such  judgment,  or  to  make  application  for  time  to 
appeal,  but  appealed  several  days  afterwards;  it  was  held  that  a 
motion  to  dismiss  the  appeal,  made  at  the  second  term  after  it 
was  returned  to  the  appellate  court,  was  in  apt  time.  Council  v. 
Munroe,  7  Jones,  396. 

See  (Evidence — Parol  evidence,  when  admissible  or  not  50.) 
(Forcible  entry  and  detainer  14.)  (Justices  of  the  Peace — Of 
their  jurisdiction,  judgment  and  execution,  (59,)  (Practice — Of 
default  and  enjuiry,  10-11-12.)  (Practice— Payment  of  money 
into  court,  5-6-7-8.)  (Practice — Of  consolidating  suits  2.) 

II.   WHEN  ALLOWED  FROM  COUNTY  TO  SUPERIOR  COURT. 

1.  The  attorney  of  the  appellant  was  required  by  the  act  of 
1785,  (ch.  233  of  the  R.  C.  of  1820,)  to  certify  reasons  for  his 
appeal  from  the  county  to  the  superior  court;  but  this  did  not 
extend  to  an  appeal  in  an  action  of  debt,  which  was  given  by 
another  act.  Barrow  v.  Baker,  Mar.,  19,(2.)  (This  provision 
Itas  been  repealed.     See  Rev.  Code,  ch.  4.) 

2,  An  appeal  will  lie  for  the  State  when  the  defendant  is  ac- 


APPEAL.— II.  61 

qtirfcted,  as^well  as  for  the  defendant  when  he  is  convicted. — 
State  v.  Haddock,  2  Hay.,  162,  (348.)  (Overruled  by  Statt  v. 
Jones,  1  Muph.,  257.) 

3.  If  the  county  court  arrests  the  judgment  on  an  indictment, 
an  appeal  is  as  proper  as  a  writ  of  error.     Ibid. 

4.  If  a  re-probate  of  a  will  be  moved  for  and  refused  by  the 
county  court,  an  appeal  will  he  from  that  order.  Ward  v.  Vick- 
ers,  2  Hay.,  164,  (351.) 

5.  An  appeal  would  not  lie  from  the  county  to  the  superior 
•court  in  the  ease  of  a  petition  for  a  private  way,  before  it  was 
given  by  the  act  of  1813.  tWood  v.  Hood,  1  Car..  L.  R.  515. 
(126.)  (It  seems  to  be  given  by  the  g<  neral  law  on  the  subjecl  of 
appeals.  See  Rev.  Code.  ch.  4,sec.  1.  Laddv.  Hairston,  I  D<  v.. 
368.) 

li.  An  appeal  will  not  lie  from  the  order  of  the  county  court, 
upon  a  petition  for  laying  out  a  public  road.  Hawkimv.  County 
of  Randolph,  1  Murph.,  118.  (Altered,  see  Rev.  Code,  eh.  4, 
sec.  2.) 

7.  Nor  from  an  order  of  the  county  court  on  a  petition  for 
leave  to  keep  a  public  ferry.  Atkinsonv.  Foreman,  2  Murph., 
55.      (Now  allowed  Rev.  Code,  ch.  4,  see.  2.) 

8.  It  seems  that  an  appeal  may  be  taken  from  an  interlocutory 
order  of  the  county  courl  granting  leave  to  amend;  ami  on  con- 
firming the  judgment  of  the  county  court,  a  'procedendo  will 
issue  from  the  superior  court.     Huntv.  OroweU,  2   Murph.,  424. 

!).  Where,  in  an  action  of  debt  en  a  bond  against  an  obligor 
and  the  executors  of  a  deceased  party,  in  which  the  former 
pleaded  the  general  issue  and  1  he  statute  oi  limitations,  and  the 
executors  pleaded  the  general  issue  and  fully  a<  ministered,  and 
the  latter  plea  was  found  in  their  favor,  while  both  pleas  were 
found  against  the  other  defendant,  #    m  i     th  i    he  might 

appeal  alone.     Sharpe  v.  Jones,  3  Murph., 

10.  There  is  no  method  by  which  an  indictment  can  be  re- 
moved from  the  county  tn  the  superior  court  for  trial,  but  by 
appeal  after  a  final  decision.     Stta  i  Hawks,  78. 

11.  An  appeal  will  lie  from  an  ordi  mnty  court  for  the 
re-probate  of  a  script,  purporting  to  be  a  will,  on  a  petition  filed 
for  that  purpose.     Odom~v.  Tia-iiij         .            :s,  24. 

12.  Where  a  deed  produced  in  th  co  irt,  under  a  sub- 
poena duces  tecum,  was  ordered  by  that  cour  o  n  delivered  to 
the  party  producing  it,  held  that  no  appeal  lay  from  the  o  ler. 
( 'a  ler  v.  Graves,  1  Dev.,  74. 

13.  An  appeal  lies,  und of  1777,  to  the  superior  c    irt. 

from  the  judgment  of  the  ci  ,  a  ]   tition      r  a 

eartway.  Ladder.  Hairsto  1  Dev.,  368.  (See  Rev.  Code.  ch. 
4,  sec.  1,  and  ch.  101,  sec.  :>7.) 

14.  The  act  of  1777,  authori  i  questions  concern- 
ing grants  of  administration,  appli  i.   by  the  act  of 


62  APPEAL.— II. 

1715.  the  applicant  has  a  vested  right  to  the  administration. — i 
Where  the  county  court  has  a  discretion  in  making  the  grant, 
as  in  administrations  pendente  lite,  its  judgments  are  necessarily 
final,  and  cannot  be  reviewed  on  an  appeal.     Pratt  v.  KittreU, 
4  Dev.  1G8. 

15.  In  an  action  against  two,  who  join  in  their  pleaSj  and 
against  whom,  after  a  joint  trial,  a  judgment  is  rendered,  an 
appeal  cannot  be  allowed  at  the  instance  of  one  defendant  only, 
and  if  allowed  by  the  county  court,  the  superior  court  acquires 
no  jurisdiction  to  try  the  cause;  but  is  bound  on  the  motion  of 
the  appellee,  to  dismiss  the  appeal,  and  award  a  procedendo. — 
Sicks  v.  Gilliam, A  Dev.,  217.  (One  defendant  may  now  appeal 
alone.     See  Rev.  Code;  ch.  -1,  sec.  27.) 

16:  An  appeal  may  be  taken  from  the  order  of  a  county 
court,  granting  a  re-probate  of  a  will,  or  if  not  taken  from  such 
order,  but  is  taken  alter  the  finding  on  the  issue,  made  in  pursu- 
ance thereof,  on  such  an  appeal  the  whole  ens.-  is  curried  up, 
and*  the  superior  court  may  revise  the  order  for  the  re-probate. 
Harvey  v.Smith,  1  Dev.  &Bat.,  1*6.' 

17..  In  an  action  of  assumpsit,  in  the  county  court,  against 
two,  if  they  plead  separately  non  assumpsit  but  the  jury  find  a 
verdict,  and  assess  damages  jointly  against  both,  one  cannot 
appeal  without  the  other  ;  and  if  an  appeal  at  the  instance  of 
one  alone  be  carried  up  and  placed  on  the  trial  docket  of  the  su- 
perior court,  though  the  plaintiff  obtain  an  order  at  tin;  first  term 
to  take  a  deposition,  and  the  cause  be  then  continued  to  the 
next  term,  it  will  at  that  term,  be  dismissed  upon  the  motion  of 
the  plaintiff.  Dunns  v.  Jones,  4  Dev..  &  Bat.,  154.  (But  sea 
Kiev.  Code,  ch.  4,  sec  27.) 

18.  Wliere  an- action  is  brought  in  the  county  court  against 
two  defendants,  who  plea <i  severally,  and  a  verdict  and  judg- 
ment are  rendered  in  favor  of  one  and  against  the  other  defend- 
ant, the  latter  may  alone  appeal  from  file  judgment  against  him. 
Stephens  v.  Bachelor,  1   Ired.,  60. 

lit.  No  appeal  can  be  taken  by  one  who  has  procured  himself 
to  be  made  a  party  defendant,  from  an  order  of  the  county  court, 
confirming  the  reporl  of  the  justice  and  fri  eholders,  under  the 
act  of  1834,  which  pvo\  ides  lor  turning  a  public  read  on  the  ap- 
plicant's own  land.  GatlUig  v.  XAverman,  1  Ired.,  63.  (See  Rev 
Code,  ch.  101,  sec.  6.) 

20.  A  superior  court  cannot  entertain  an  appeal  to  revise  the 
exercise  of  a  discretionary  power  by  an  inferior  court,  when  tin 
decision  of  the  latter  is  made  as  a  matter  of  discretion,  but  if  tin 
decision  were  made  as  a  matter  of  strict  right,  and  upon  the 
supposition  that  the  inferior  tribunal  had  no  discretion,  it  wih" 
be  reversed,  and  the  inferior  courl  ordered  to  proceed  in  the 
cause  in  tin-  exeicise  of  its  sound  discretion.  Reynoldsx.  Boyd, 
1  Ired.,  106.  . 


APPEAL.— II.  G3 

21.  If  at'ti  r  a  verdict  for  the  plaintiff,  m  the  enmity  court, 
the  court,  upon  motion  of  the  defendant,  order  the  costs  of  the 
attendance  of  same  of  the  plaintiff's  witnesses  to  be"  taxed 
against  him,  and  he  appeal  from  such  order,  the  appeal  is  prop- 
er, and  the  superior  court  cannot  dismiss  it,  upon  the  ground 
that  the  matter  appealed  from  was  one  within  the  discretion  of 
the  county  court.     Gash  v.  Bees,  1  [red.,  124. 

22.  No  appeal  lies  from  the  decision  of  the  county  court  in 
the  ease  i  if  a  petition  to  drain  lands;  hut  the  superior  court 
may  revise  the  decision  of  the  county  court  either  by  a  writ  of 
error,  or  by  a  certiorari  in  the  nature  of  a  writ  of  error.  ( 'oUins 
v.  Saughton,  4  [red.,  420.  (It  seems  that  an  appeal  will  now 
lie — see  Rev.  Code,  ch.  4,  sec.  1,  and  ch.  40.  sec.  15.) 

23.  An  appeal  will  not  lie  from  an  order  of  the  county  court, 
appointing  a  guardian  to  a  lunatic  or  idiot.  Willis  v.  Lt  wis,  5 
Ired.,  14.  (An  appeal  is  now  expressly  given — See  Rev.  Code, 
eh.  4,  sec.   2.) 

24.  Upon  th  i  petition,  to  condemn  an  acre  of  land  for  the  site 
of  a  public  mill,  the  decision  upon  the  facts  by  the  county  court 
and  freeholders  is  final,  and  is  not  the  subject  of  an  appeal  to 
the  superior  court.     Brooks  v.  Morgan,  5  Ired.,  481. 

25.  Where  there  ajs&two  or  more  parties  defendants  in  an  ac- 
tion of  trover,  an  appeal  by  less  than  the  whole  number  of  par- 
ties cannot  he  supported,  although  they  pleaded  severally.  If 
the  verdict  be  against  all,  the  judgment  must  necessarily  be 
against  all  for  the  whole  sum, found  in  damages.  Donnell  v. 
Shields,  8  Ired.,  371.  (One  or  more  may  now  appeal  without  the 
other  defendants.     See  Eev.  Code,  ch.  4,  sec.  27.) 

26.  Where  a  person,  was  sued  in  ejectment  as  tenant  in  pos- 
session, and  the  court  improperly  refused  to  permit  him  to  plead, 
upon  the  ground  that  he  was  a  tenant  holding  over,  and  there- 
fore bound  to  give  a  bond  under  the  act^  Rev.  Stat.,  ch.  31,  sec. 
51,  when  it  did  not  appear  that  he  had  refused  to  deliver  pos- 
session, ana  a  judgment  by  default  was  entered  against  the 
casual  ejector,  it  was  Jteld,, that  he  was  entitled  toapp  ial.  Phelps 
v.  Long,  9  Ired.,  226.     (Si  e  Rev.  Code,  ch.  31,  sec.  48.) 

27.  An  appeal  from  an  interlocutory  order  of  the  county  court 
will  he  sustained,  when  the  question  presented  to  the  court  is 
such,  that  a  judgmenl  apon  it  one  way  would  put  an  end  to  the 
cause.     Mastin  v.  Porter,  10  Ired.,  1. 

28.  An  appeal  will  lie  to  the  superior  court  from  an  order  of 
of  the  county  court  allowing  an  amendment:  and  in  such  a  case 
the  superior  court  lias  the  same  right  of  discretion,  in  regard  U> 
the  amendment,  which  the  county  court  had,  the  order  of  the 
county  court  being  annulled  by  the  appeal.  Britt  v.  Patterson 
10  Ired,  390. 

29.  An  appeal  will  not  lie  from  the  decision  of  the  county 


64  APPEAL.— II. 

court,  upon  a  petition  for  draining  the  petitioner's  lands  through 
those  of  other  persons.     Stanly  v  Watson,  11  Ired.,  124. 

30.  An  appeal  will  not  lie  to  the  superior  court  from  the 
decision  of  the  couuty  court,  on  a  petition  by  an  alleged  lunatic 
to  have  the  verdict  of  an  inquest  in  his  case  set  aside,  and  the 
guardian  appointed  in  pursuance  thereof  removed.  Pay  v.  Bay 
11  Led.,  357. 

31.  An  appeal  lies  to  the  superior  court  from  an  order  of  the 
county  court,  allowing  an  amendment  or  setting  aside  a  judg- 
ment for  irregularity.      WiUiams  v  Beasley,  13,  Ired.  112. 

32.  The  act  of  1850,  authorizing  an  appeal  by  one  defendant 
when  there  are  more  than  cue,  does  not  apply  to  appeals  taken 
before  that  time.  Smithv.  Calloway,  13  Ired.,  477.  (See  Eev. 
Code,  ch.  4.  sec.  27.) 

33.  The  parties  to  an  issue  joined  upon  an  interplea  in  attach* 
ment  under  the  act,  Rev.  Stat.,  ch.  ti.  sec.  7.  have,  each,  the 
same  right  of  appeal  under  section  14  to  the  superior  court,  as 
in  actions  commenced  in  the  ordinary  way,  McLean  v.  Mc- 
Daniel,  Bush,  203.     (See  Rev.  Code,  ch.  7,  sec.  10.) 

34.  The  purchaser  of  property  at  a  sale,  under  an  execution 
issued  on  a  dormant  judgment,  has  a  right  to  intervene  and  ap- 
peal from  an  order  oi  the  county  court  setting  aside  such  execu- 
tion. Hurphrey  v.  Wood,  2  Jones,  63.  (None  but  a  party  to 
the  record  can  now  appeal.  See  Rev.  Code,  oh.  4,  sec.  1,  which 
varies  from  the  language  of  the  Rev.  Stat.,  ch.  4,  sec.  1.) 

35.  The  next  of  kin  of  an  intestate  have  a  right  to  intervene 
and  appeal  from  an  ex  parte  order  of  the  county  court,  obtained 
by  the  administrator  for  the  sale  of  the  slaves  belonging  to  the 
estate.  Watkins  v.  Pemberton,  2  Jones,  174.  (As  to  the  pres- 
ent rule,  see  Rev.  Code',  ch,  4.  sec.  1.) 

36.  When  a  defendant  in  a  ca.  sa.  bond  has  been  called  and 
failed,  and  a  judgment  rendered  against  him  and  his  sureties  on 
the  bond,  in  the  county  court,  he  may  come  forward  at  anytime 
during  the  same  term,  and  take  an  appeal  to  the  superior  court, 
where  his  rase'  will  be  considered,  de  novo.  PlurilcUt  v  Penniri- 
gnr,  2  Jones,  367. 

37.  A  plaintiff  may  submit  to  a  judgment  of  non-suit  in  the 
county  court  and  appeal,  for  the  suffering  a  non-suit  is  not  a  /■<■- 
traxit  or  abandonment  of  his  suit.  Spruill  v.  Trader,  5  Jones.  :'>'.i. 

38.  An  order  of  the  county  court  permitting  a  creditor  not 
notified  to  make  up  an  issue1  of  fraud  with  an  alleged  insolvent 
debtor,  a  refusal  to  treat  certain  specifications  of  fraud  suggest- 
ed by  the  plaintiff  as  nullities,  on  account  of  vagueness  and  of 
notbeingfiled  in  proper  time,  and  also  an  order  to  continue 
the  cause,  can  neither  of  them,  nor  all  together,  be  appealed  from 
to  the  superior  court,  because  a  di  ■  ion  of  them,  either  way, 
would  not  put  an  end  to  the  cause.  Cook  &.  Johnson  v.  McDou- 
gald,  5  Jones,  305. 


APPEAL— It.-III.  65 

39.  A  right  of  appeal  is  given  by  the  general  law  in  relation 
to  appeals,  (l!ev.  Code,  ch.  I.  sec.  1,)  onacontest  arising  under 
i  petition  for  a  cartway.      fjunlen  v.  Harman,  7  Jones,  354. 

40.  No-appeal  will  lie  from  the  county  to  the  superior  court, 
which  must  necessarily  lie  ineffectual  for  the  purpose  for  which 
it  is  prayed.      Clark  v.  Latham,  8  .'ones,  1. 

41.  The  county  court  has  a  discretionary  p. ewer  to  set  aside  a 
judgment  taken  on  a  ca.  sa.  bond,  at  any  time  during  the  same 
term,  and  no  appeal  will  lie  to  the  superior  court  from  an  order 
made  in  the  exercise  of  such  discretion.  WilUams  v.  Scimmer 
horn,  8  Jones,  104. 

42.  An  administrator  has  a  right  to  appeal  from  an  order  of 
the  county  court  affirming  the  report  of  commissioners  mak- 
ing a  year's  allowance  to  a  widow.  Saunders  v.  EusseU,  1 
Winst.,  97. 

See  (  Ch  rks  and  Oh  rks  ami  Mas'ters-J-Of.  their  election  or  ap- 
pointment, ;>.)  (Corporations — Of  particular  corporations,  ;i.) 
(Execution — Levy,  sale  and  application  of  the  money  raised,  43.) 
(Widow — Proceedings  to  obtain  dower,  1.) 

III.       WfiEN    THE    TRANSCRIPT    MUST    BE    PILED 

1.  Under  the  act  of  1777,  (ch.  115,  see.  77,  of  the  I!.  I  .  ol 
1820)  directing  appeals  from  the  county  to  the  superior  court  to 
be  brought  up  "fifteen  days  before  the  sitting  of  the  term,"  the 
:i  :    I  has  no  discretion^  and  upon  a   failure  of  the  appellant  for 

any  cause,  the  judgment  must  I"-  affirmed.  Gregory  V.  Bray, 
Mar.,  39,  (29.)  S.I'..  Robertson  v.  Stone,  1  Hay.,  401,  (462.) 
Hbodv.  Or,\  X.  C  Term  lep.,  151,(584.)  (The  law  is  now 
altered.  See  Rev.  Code,  ch.  I  sec.  3  and  4,  which  requires  the 
transcript  to  be  filed  on  or  before  the  first  day  of  the  next  term 
of  the  superior  court.) 

2.  The  fifteen  days  must  be  clear  of  the  day  of  filingthe 
paper-  and  th  i  first  day  of  the  term.  Anonymous,  1  Hay,  402, 
(463.)  {Over,  \  '  bj  Anonymous,  Ibid,  162,  (532.)  (See  note 
In  lasr  section.) 

3.  Where  there  Were  but  twenty  nine  days  between  the  last 
day  of  the  county  and  the  first  day  of  the  superior  court,  held  that 
the  appellant  had  until  the  term  following  to  file  the  transcript; 
Orme  v.  Smith,  1  Car.  L.  R.,  364,  (32.)  (See  note  to  1st  sec- 
tion, i 

I.  If  an  appeal  from  the  county  to  the  superior  court  is  not 
filed  within  the  tune  limited  bylaw,  it  must  be  dismissed, 
although  such  omission  proceeds  from  accident  and  without 
laches  in  the  appellant;  hut  in  such  eases  a  certiorari  will  be 
granted.     Hood  v  On;  X.  C.  Term  R,,  151,  (584.) 


<3G  APPEAL.— IV. 

IV.   EFFECT  OF  AN  APPEAL  FROM  THE  COUNTY  TO  THE  SUPERIOR  COURT.. 

1.  Where  the  plaintiff  had  a  verdict,  and  the  defendant,  after 
an  ineffectual  motion  in  arrest  of  judgment,  appealed,  it  was 
held,  that  the  cause  stood  in  the  superior  court  upon  the  issue 
joined  in  the  county  court.-    Snoden  v.  Humphreys,  1   Hay.,  21, 

(290 

2.  If  the  appellant  neglect  to  carry  up  his  appeal  under  the 

act  of  1777,  (See  Ptev.  Code,  ch.  4  sec.  6,)  the  appellee  may  hie 
the  transcript  and  move  for  the  affirmance  of  the  judgment  with 
double  costs,  either  at  the  first  or  any  other  term  after  the  appeal. 
Brickdl  v.  Bass,  1  Hay.,  137,  (157.)  (Haywood,  J.,  doubted  of 
this  in  an  Anonymous  ease,  1  Hay.,  171,  (179,)  and  a  rule  was 
granted  to  the  appellee  for  the  appellant  to  show  cause  at  the 
next  term.) 

3.  An  appeal  from  the  county  to  the  superior  court  nullifies 
the  judgment  of  the  county  court,  so  that  it  cannot  be  after- 
wards acted  upon.     Davison  v.  Mull,  1  Hay.  361,  (417.) 

4.  Upon  an  appeal  from  an  order  of  the  county  court  over- 
ruling exceptions  to  an  award,  made  on  a  reference  by  a  rule  of 
court  to  arbitrators,  the  superior  court  will  not  grant  a  new  trial 
on  the  issues,  but  only  examine  the  alleged  errors  in  the  court 
below.— Burton  v.  Sheppard,  1  Hay.  399,  (460.) 

5.  Where,  in  arn  appeal  a  new  trial  was1  had  in  the  superior 
court,  and  a  verdict  for  as  great  a  sum  was  there  obtained,  as 
had  been  rendered  in  the  county  court,  Haywood,  J.,  thought 
this  an  affirmance  of  the  judgment  of  the  county  court,  and 
that  judgment  might  be  entered  instanten  against  the  appellant 
and  his  sureties,  under  the  act  of  1785.  (Iiev.  Code,  ch.  4,  sec. 
10,  but  Stone,  J.,  thought  otherwise.  Yar&orougli  v.  Giles,  1 
Hay.,  453,  (521.) 

6.  Where  a  petition  for  an  account  in  the  county  court  had 
been  referred  to  an  auditor,  and  upon  the  coming  in  of  the  re- 
port exceptions  were  filed,  and  being  overruled,  the  plaintifj 
appealed  ;  it  was  held,  that  the  superior  court  would  begin  with 
the  exceptions,  and  afterwards,  perhaps,  hear  the  cause  upon  the 
petition,  answer  and  proof's.  Envinv.  Arthur,.  Conf.  liep.  490, 
(542.) 

7.  The  judgment  of  the  county  court,  not  being  lessened  in 
the  superior  court,  bears  ten  -per  cent.,  up  to  the  time  of  render- 
ing judgment  in  the  superior  court.  Mumford  v.  Hodges,  1 
Murph.,  131.     (See  Rev.  Code,  ch.  4,  sec.  8.) 

8.  If,  on  an  appeal  from  the  connty  to  the  superior  court,  the 
plaintiff  is  non-suited,  and  then  the  defendant  consents  that  the 
non-suit  may  be  set  aside,  and  afterward  a  judgment  is  rendered 
for  the  plaintiff,  the  defendant's  sureties  for  his  appeal  are  not 
discharged,  on  the  ground  that  they  did  not  consent  to  set  aside 
the  non-suit  ;  for  the  sureties  have  no  control  over  the  proceed- 


APPEAL.— IV.  07 

>ngs  between  the  plaintiff  and  defendant,  and  are  bound  to  per- 
form the  final  judgment  of  the  court  in  the  suit.  McGimse  v. 
Vail,  1  Murph.,  408. 

9.  Under  the  act  of  1801,  ten  per  cent,  is  to  be  calculated 
upon  the  principal  of  the  debt  only  from  the  rendition  of  the 
judgment  in  the  county  court,  to  its  rendition  in  the  superior 
court;  and  six  percent,  thereafter,  until  it  be  paid.  Scott  v. 
Drew,  '1  Murph.,  25.     (See  Rev.  Code,  ch.  4.  sec.  8.) 

10.  'Where  there  is  an  issue  joined  in  the  county  court  and  a 
verdict  of  a' jury  given,  and  before  the  verdict  is  entered,  amotion 
to  dismiss  the  suit  is  mad!'  and  allowed  by  the  court,  and  the 
plaintiff  appeals  to  the  superior  court,  there  must  be  a  trial  de 
novo  of  the  issues  in  the  superior  court ;  for  that  court  cannot 
render  a  judgment  upon  the  verdict  in  the  county  court.  Clark 
v.  Cameron,  4  [red.,  161. 

11.  Where,  in  a  suit  pending  in  the  county  court  an  award  by 
Keferees,  under  a  rule  ol  court,  is  made  in  favor  of  the  plaintiff, 
and  the  court  sets  aside  the  award  and  orders  a  trial,  upon 
which  there  is  a  verdict  for  the  defendant,  the  plaintiff  cannot, 
by  them  appealing,  bring  the  questions  on  the  award  before  the 
superior  court.  lie  should,  as  he  had  a  right  to  do,  have 
appealed  from  the  decision  of  the  county  court  upon  the  award. 
tit-ate  v.  Laws,  7  Ired.,  375. 

12.  Where  two  defendants  are  sued  upon  what  purports  to  be 
a  joint  bond,  and  a  verdict  and  judgment  is  rendered  against 
both,  from  which  an  appeal  is  taken  to  the  superior  court,  in 
that  court  a  verdict  may  be  found  against  one  only,  and  a  judg- 
ment be  rendered  accordingly.     Broun  v.  Conner,  10  Ired,  75. 

13.  Where  there  is  a  judgment  in  the  county  court  against 
two,  and  one  craves  an  appeal,  and  both  join  in  one  appeal 
bond,  and  there  is  judgment  in  the  superior  court  against  one 
and  in  favor  of  the  ether,  upon  the  verdict  of  the  jury,  yet  the 
court  may  render  judgment  against  the  latter,  upon  the  appeal 
bond.     Ibid. 

14.  Where  an  interlocutory  order  does  not  have  the  effect  to 
put  the  ca.se  out  of  the  county  court,  an  appeal  from  it  will  not 
take  the  whole  case  to  the  superior  court,  but  only  the  question 
raisi  1  by  the  interlocutory  order.  Russell  v.  Saunders,  3  Jones, 
432,  S.  1'.,  Purvisv.  Robinson,  4 Jones,  '.'i!. 

15.  Ah  appeal  from  the'  judgment  of  the  county  court,  upon 
exceptions  to  the  report  of  the  jury  ordered  to  lay  off  a  road 
between  certain  termini,  only  embraces  such  exceptions,  and 
does  not  take  up  the  merits  of  the  petition.  Anders  v.  Anders, 
1  Jones,  243. 

10.  Where,  in  an  attachment,  application  was  made  to  the 
county  court  for  leave  to  interplead,  which  was  allowed,  but 
afterwa  ed  for  the  insufficiency  of  the  bond  tendered, 

a  second  application,  accompanied  with  the  tender  of  a  sufficient 


(58  APPEAL.— IV. 

bond  was  made  and  refused,  and  the  applicant  appealed  to  the 
superior  court,  it  was  held,  tiiat  the  party  was  entitled  to 
interplead  on  his  second  application,  and  that  tin:  superior  court, 
after  the  appeal,  ought  to  have  permitted  the  interplea,  and 
retained  the  cause,  and  not  have  issued  a  procedendo  to  the 
county  court.  Evans  v.  Governor's  Creek  Transportation  and 
Minimi  Company,  5  Jones,  331. 

17.  The  commissioners  appointed  under  the  act,  (Rev.  Code, 
eh.  40.)  which  relates  to  the  draining  of  low  lands,  constitute  a 
separate  and  distinct  tribunal,  and  an  appeal  from  a  judgment 
confirming  their  report  in  the  county  court,  does  not  take  up 
the  whole  cause  tube  tried  de  novo,  in  the  superior  court,  but 
only  the  questions  of  law  arising  on  the  report.  Skinner  v 
Nixon,  7  Jones,  342. 

1<S.  Where  the  defendant  in  the  county  court  pleaded  in 
abatement  to  the  jurisdiction  of  the  court,  to  which  the  plaintiff 
demurred,  and  upon  the  demurrer  being  overrule!  1  and  the  plea 
sustained,  the  defendant  appealed  to  the  superior  court...  when" 
the  judgment  was  reversed,  it  was  lield^  that  the  wlioia  casi 
was  brought  to  the  superior  court,  and  ought  not  to  be  ord!  '  -! 
hack  under  a  procedendo  to  the  county  court.  Moreliead!  v..  At- 
lantic and  North  Carolina  Railroad  Company,  7  Jones,  500. 

V.).  Where,  upon  an  appeal  from  the  county  to  the  superior 
court,  the  suit  ponded  for  three  terms  in  the  latter  court,  when, 
a  motion  was,  for  the  lirsl  time,  mad''  to  dismiss  the  appeal  for 
defects  in  the  appeal  bond,  it  was  held,  that  the  appellant  might 
as  a  matter  of  rigid  immediately  file  a  sufni  ienl  bond  and  pros- 
ecute his  appi  al,  and  that  an  order  of  the  superior  court  deny- 
ing such  right,  and  dismissing  the  appeal,  was  erroneous  and 
might  be  reversed  on  appeal  to  the  supreme  court,  March  v., 
Griffith,  8  Jones.  2U. 

'2d  Where  an  appeal  from  the  county  court  stood  on  the 
docket  of  the  superior  court  for  three  terms,  and  at  the  fourth 
the  appellee  moved  to  dismiss  it  for  irregularity,  it  was'  held, 
that  all  such  objection  weri  considered  as  waived  by  the  delay 
and  acquiescence.     ■'•  hnso     - .    '  ■    <  1  Whist.,  83. 

21.  I  r  is  not  a  ground  for  dismissing  an  appeal  from  the  supe- 
rior court,  that  the  county  court  had  failed  to  enforce  a  ride 
made  by  itself,  incidentally  in  the  progress  of  tin  cause.  Every 
court  must  enforce  its  own  incidental  rules,  and,  on  an  appeal; 
the  higher  cannot  notice  such  rules  made  in  the  lower  court. 
Ibid.  ' 

See  i ,  HivLway,  18-36.)  (Insolvent  debtors— Proceedings 
under  the  act  of  1822  and  subsequent  acts,  25-26-31-5-1  57.) 
Widow — Proceedings  to  obtain  dower.  1.)  (Wills— of  the  pro- 
bate and  re-probate,  31.) 


APPEAL.— V. 

V.       OF   T11F.    APPEAL    BOXD    AKD    Til!':    M  [U'.'IIKS    THERETO. 

1.  Where  a  party  prayed  an  appeal  from  the  county  court  hut 
did  not  file  the  papers,  and  afterwards  moved  lor  a  writ  of  error 
and.  filed  a  transcript  of  the  record,  the  superior  court  refused, 
upon  t  he  motion  of  the  other  party,  to  dismiss  the  appeal,  saving 
that  they  had  nothing  before  tli  'in.  i  ml  that  there  was  no  rem- 
edy hi  such  case  but  to  sue  on  the  appeal  bond.  Watson  v. 
Wright,  .Mar.  21,  (7.)  (How  such  appeals  are  now  regulated: 
See  Rev.  (.'ode.  eh.  4.  sec.  ;>— 1-5-6.) 

2.  After  an  ajipeal  by  d  fendant,  if  his  hail  surrender  him,  it 
will. no!  discharge  the  sureties  to  his  appeal  bond.  Coolie  v. 
Utile,  1  Hay..  168,  (193.) 

3.  Judgment  may  he  entered  up  instanter  against  the  sureties 
upon  an  appeal  bond.     Kinchen  v.   Brickivell,  2   Hay.,  49,  (209.) 

4  An  appeal  bond  with  new  sureties  may  hie  substituted  in 
the  place  of  a  former  one,  when  one  of  the  sureties  is  wanting  as 
a  witness  for  the  appellant  Lavender  v.  PritcJiard,  2  Hay.,  ilMT, 
(513.)     S.  P.,  MeCulloch  v.  Tyson,  2  Hawks,  336. 

5.  One  surety  to  an  appeal  bond  from  the  county  to  the  supe- 
rior court  is  sufficient,  if  the  surety  be  good;  at  all  events  it 
seems  that  the  superior  court  may.  in  its  discretion,  take  a  new 
hond  with  two  sureties.  Flemming  v.  Williams,  2  Hay.,  400, 
(602.)  See  contra,  Jones  v.  St/Ices,  1  Murph.,  281,  and  Gibson  v. 
Li/ik-Ii.  Ibid,  495;  but  that  in  such  ease  the  superior  court  may 
take  a  new  Ixrad  with  two  sureties,  see  McDowell  v.  JJr<i</!<  y,  8 
Ired..  92. 

C>.  The  sureties  on  an  appeal  bond  cannot  be  charged,  if  the 
condition  of  the  bond  leave  out  the  most  effective  part  required 
hy  law.  to  wit,  that    the   sureties  should   !»•   discharged    on  the 

performance  by  the  appell; f  the  judgment  above.      Wallt  r  v. 

Pitman,  Conf  Rep.  K>7.  (237.)  S.  P.,  Forsyth  v.  McCormick,  2 
Car.  haw  Repos.  472,  (359.)     Orr  v.  McBride,  •">  Murph.,  235. 

7.  On  an  appeal  by  the  State  no  appeal  bond  is  necessary. 
Sljilr  v.  McGlellcnal,  Conf.  hep.  523.  (569.) 

8.  An  appeal  bond  cannot  be  legally  executed  after  the  rise 
of  the  county  court,  nor  will  the  appeal  be  sustained  unless  the 
bond  is  executed  in  the  county  court,  the  superior  court  having 
go  authority  to  .take  a  bond  to  sustain  an  appeal.  Newnan  v. 
•Neivnmi,  1  Murph,  178. 

9.  When  a  pi  ity  has  a  right  of  appeal  given  him,  and  neither 
the  form  of  the  appeal  bond  nor  the  pi  rson  to  whom  it  snail  be 
made  is  prescribed,  the  comity  court  must  lix  the  form  and 
direct  to  whom  the  bond  shall  be  made  payable.  Atkinson  v. 
Fon  mo   .  -  Murph.,  ■>'>. 

Id.  When  appeal  was  taken  by  the  defendant  from  the  county 
to  the  superior  court,  but  by  mistake  the  a]  peal  bond  was  exe- 
cuted by  the  plaintiff  instead  of  the  defendant,  the  appeal  was 


70  APPEAL.— Y 

dismissed  by  the  superior  court,  but  a  writ  of  certiorari  was 
ordered  on  defendant's  motion.  Speed  v.  Ha  nix,  2  Car.  L.  11, 
434,  (317.) 

11.  If  the  appellee  in  the  superior  court  suffer  the  cause  to  go 
to  the  jury,  it  is  an  implied  waiver  of  any  objection  arising  from 
the  defectiveness  of  the  appeal  bond,  and  the  appellant  may 
proceed  in  the  suit.  But  the  court  may,  in  its  discretion,  require 
further  security.  Ferguson  v.  McAuthur,  X.  C.  Term  R.,  107, 
(544.)    S.  P.,  Smith  v.  Neil,  2  Hawks,  14. 

12.  The  bond  required  on  appeals  from  the  eomitytothe  supe- 
rior courtis  intended  as  a  security  tor  the  appellee,  and  the 
sureties  are  not  liable  for  the  costs  of  the  appellant.  Wilson  v. 
Murchison,  2  Dev.,  491. 

13.  Where  a  defendant  was  convicted  of  an  offence  in  the 
county  court  and  appealed  to  the  superior  court,  and  then 
removed  his  cause  to  an  adjoining  county  for  trial,  it  is  too  late 
for  the  State  to  move  for  the  dismissal  of  the  appeal  for  want  of 
an  appeal  bond,  especially  where  the  defendant  has  been  in  cus- 
todv  ever  since  the  conviction.  State  v.  MitcheU,  2  Dev.,  ami 
Bat.,  237. 

14.  Where  an  appeal  is  taken  from  the  judgment  of  a  justice, 
which  is  reversed  in  the  county  court,  but  on 'appeal  to  the  supe- 
rior court  is  there  affirmed,  the  surety  to  the  appeal  from  the  jus- 
tice is  still  bound.     Carroll  v.  McGee,  '■>  Ired.,  13. 

15.  A  surety  to  an  appeal  from  a  justice,  can  only  be  bound 
according  to  the  act  of  Assembly,  when  he  subscribes  his  name 
himself;  a  subscription  by  another  in  his  presence  and  at  his 
request,  is  not  sufficient;  but  when  he  holds  the  pen.  and  another 
guides  it  to  sign  his  name,  it  is  a  signature  by  himself.  Ibid. 
(See  Rev.  Code,'  eh.  62,  sec.  24.) 

16.  A  surety  who  signs  an  appeal  from  the  judgment  of  a  jus- 
tice will  be  bound,  although  the  appeal  is  taken  after  the  time 
allowed  by  the  act  for  taking  an  appeal,  provided  lie  c  p- 
posite  party  consents  that  an  appeal  may  bo  then  taken.     Ibid, 

17.  Where  an  appeal  was  filed  in  the  superior  court,  and  the 
appellee  removed  the  cause  to  an  adjoining  county  tor  trial,  and 
suffered  it  to  remain  there  for  three  years  before  he  moved  to 
dismiss  the  appeal,  for  want  of  an  appeal  bond,  it  was  held,  that 
the  motion  came  too  late,  and  that  the  appellee  must  be  pre- 
sumed to  have  waived  his  right  to  abend.  Wallaces.  Corbit, 
4  Ired.,  4.".. 

18.  Where,  upon  an  appeal  to  the  superior  court,  the  cause- 
has  been  continued  therein  for  two  years,  and  witnesses  have 
been  summoned  on  both  sides,  it  is  too  late  lor  the  ap]  ellee  to 
move  to  dismiss  the  appeal  for  the  want  of  an  appeal  bond;  as 
he  will  be  considered  to  have  waived  his  right  to  a  bond. — - 
Arrington  v.  Smith,  4  {red..  59. 

lit.   Upon  an  appeal  to  the  supreme  court  in  a  criminal  ca 


APPEAL.— V.-VI.  71 

the  appeal  bond  covers  the  costs  of  both  courts.     State  v.  'Pat- 
terson, 5  [red.,  89. 

20.  Where,  upon  an  appeal  to  the  supreme  court  in  an  indict- 
ment, judgment  was  directed  to  be  entered  by  the  court  below, 
both  for  the  punishment  and  the  costs,  and  the  court  below  at  Sep- 
tember term,  1842,  entered  judgment  only  for  the  punishment, 
it  had  a  right  at  September  term,  1844,  upon  a  rule  previously 
obtained  for  that  purpose,  to  enter  a  judgment  nunc  pro  tunc  for 
the  costs  also,  against  the  defendant  and  his  surely  on  his  appeal 
bond  to  the  supreme  court.     Ibid. 

21.  Where  a  defendant  on  an  appeal  from  the  judgment  of 
the  county  court  gave  an  appeal  bond  with  but  one  surety,  such 
surety  cannot,  on  the  judgment  being  affirmed  in  the  superior 
court,  object  to  a  judgment  against  himself,  on  the  ground  that 
the  statute  required  two  sureties,  for  the  sureties  are  required 
for  the  benefit  of  the  plaintiff,  and  he  may  dispense  with  them 
in  whole  or  in  part,  at  his  option.    Cochrane.  Wood,  7  Ired.,  215. 

22.  A  separate  judgment  may  lie  rendered  against  the  sure- 
ties on  an  appeal  bond,  or  the  judgment  maybe  against  them 
jointly  with  their  principal.      Woolard  v.   Woolard,  *  Ired.,  322. 

23.  An  administrator,  who  establishes  his  plea  of  fully  admin 
istered,  is  entitled  of  course,  under  our  statute,  to  his  costs;  and 
the  plaintiff,  though  he  take  a  judgment  quando,  cannot  have  a 
judgment  against  the  surety  on  the  administrator's  appeal  bond, 
tin'  case  having  been  tried  upon  appeal.  Terry  v.  Vest,  11 
Ired.,  65. 

24.  Where,  in  an  appeal  bond  given  by  the  defendant,  the 
plaintiff's  name  is  omitted,  although  the  court  at  the  first  term 
would  dismiss  the  appeal  unless  the  defendant  gave  a  sufficient 
bond,  yet  it  will  not  do  so  as  a  matter  of  course,  when  several 
terms  have  elapsed.     Robinson  v.  Bryan,  12  Ired ,  183. 

2").  If  the  bend  given  upon  taking  an  appeal  be  signed  by 
sureties,  it  is  not  essentiaJ  that  it  should  be  signed  by  the  appel- 
lant also.      Cohonii  v.  Morton,  4  Jones,  256. 

26.  Appeal  bonds,  sent  up  from  the  county  to  the  superior 
courts,  are  made  by  flu-  Rev.  Code,  ch.  4.  sec.  1  and  10,  parts 
of  the  record,  and  cannot  be  questioned  by  plea  and  proof  at 
the  instance  of  the  sureties.      Whitehead  v.  Smith,  8  Jones,  351. 

VI.       FROM    THE  SUPERIOR  TO    THE  SITREME    COURT WHEN    ALLOWED,  A2JD 

ITS    EEFECTS. 

1.  The  supreme  court  will  not  entertain  an  appeal,  but  will 
Hrect  a  certificate  that  the  appeal  has  not  been  filed,  unless  the 
appellant  hies  the  bond  together  with  the  transcript  of  the 
record  in  time  ;  but  on  failure  to  do  so.  a  certiorari  will  be 
ordered,  provided  a  proper  cause  be  shown  by  affidavit.  Man- 
ting  v.  Saun/er,,  I  Hawks.  37. 


72  JrPFEAIi— VI. 

2.  If  the  appellee  file  the  transcript  in  the  supreme  com-!    ii 
cannot  afterwards  obtain  a  certificate  of  the  failure  of  the  appel- 
lant to  bring  it  up  ;  but  the  court  must  look  into  the  reedtd  and 
affirm  or  reverse  the- judgment.     Frazier  v.   Felton.    1  pawks; 
2.31. 

3.  A  bond  with  a  penalty  sufficiently  large  will  be  taken  as 
an  appeal  bond,  though  the  penalty,  from  a  mistake  of  the  clerkj 
be  not  so  large  as  that  ordered  by  the  judge.  Cherry  v.  SUiilc. 
2  Hawks,  400. 

4.  When  a  cause  is  once  ordered  to  the  supreme  court,  that 
court  acquires  jurisdiction,  and  the  superior  court  cannot  take 
any  further  step  in  it.  The  supreme  court,  therefore,  will  not 
regard  any  subsequent  proceedings  in  the  court  bel6w.  Mur- 
ray v.  Smith,   1    Hawks,  41. 

5.  The  refusal  of  an  inferior  court  to  allow  pleadings  to  be 
amended,  or  to  continue  a  cause,  or  any  other  exercise  of  a  mere 
power  of  discretion,  held  not  to  be  an  error  for  which  thejudgp 
ment  will  he  reversed  on  appeal  or  writ  of  error.  Armstrong  v 
Wright,  1   Hawks. '.Ki  S.  Pr  Turner  v.   Child,   1   Dev.,   133.  ' 

li.  There  cannot  be  an  appeal  to  the  supreme  court  from  the 
judgment  of  the  superior  court  granting  a  new  trial  for  matter 
of  law  ;•  nor  from  a  judgment  of  respondeat  ouster  given  on  a 
demurrer  to  a  plea  in  abatement  :  nor  from  a  decree  disallowing; 
a  plea  to  a  petition  for  distribution  and  ordering  the  defendant 
to  answer,  ;  because  these  are  not  final  sentences,  judgments  or 
decrees.  State  v.  liolnitsoii,  1  Hawks,  IKS.  (Appeals  may  now 
lie  allowed  from    interlocutory  judgments    in    some    cases— see 

RCV   Code,4h.  4,  see.   23   ) 

7.   An   Appeal  will  not    lie  from  an   interlocutory  judgment. —  - 
Medford  v.  Harreh  •'»  Hawks.  41.    S,  P.    La/ham  v.  Boicen-,  Ibid. 
418.     (Such  appeals  may  now  be  allowed  in  certain  cases — Uev. 
Code,  eh.  4,  sec.  23.) 

■  -  8.  An  appeal  will  not  lie  from  an  act  don<  by  the  superior 
court  in  the  exercise  of  a  legal  discretion.  Statev.  Lamon,3 
Hawks,    17.">. 

9.  The  question  on  the  plea  of nultiel  record  is  a  question  of 
fact  to  be  tried  by  the  court,  and  not  a  question  of  law.     Hence, 

upon  an  appeal  from  the  judgment  of  the  superior  court  deciding 
thai  there  was  no  record  because  there  was  no  impression  of  a 
seal,  the  supreme  court  has  no  power  to  re-examine  the  question 
of  fad  whether  there  were  a  seal  or  not.  State  v.  Isham,  3 
Hawks,  185  S.  P.  Sjate  v.    Grayton,  Ibid,  187,    note. 

10.  If  no  error  be  assigned  in  the  charge  of  the  judge,  and 
none  appeal's  upon  the  record,  the  judgment  of  the  superior 
court  will,  upon  an  appeal,  be  affirmed  in  the  supreme  court. — 
Stephenson  v.  Junes.   1  Dev.,  15. 

1.1.    An  appeal  will  not  lie  from   the    Superior    to  1  lie  supremo 


APPEAL.— VI.  7:. 

court  upon  an  order,  nrade  on  a  rule  obtained  directing  a  sheriff 
to  amend  his  return.     Davidson  v.  Cowan,  1  Dev.,  .'ifi4. 

12.  An  appeal  will  not  lie  from  an  order  of  refusal  to  grant  a 
new  trail  on  the  ground  of  surprise,  lint  being  a  discretionary 
power.     Lindsay  v.   Lee,  1   Dev.,  464 

13.  Appeals  to  the  supreme  court  can  only  be  I'm'  errors  in 
law  ;  and  the  decision  of  the  judge  or  jury,  upon  a  trial  of  fact, 
cannot  be  reviewed.  Hence  the  decision  of  the  judge  in  the 
court  below  bn  tlie  plea  of  mil  tiel  record  is  conclusive.  St  tte  v. 
Raiford,  2  Dev.,  214. 

14.  The  exercise  of  a  discretionary  power  in  the  superioi 
court  cannot  be  examined  upon  an  app  al.  Cannon  v.  Be  man, 
%  De\\.  363. 

1").  The  superior  courts  have  a  discrel  bn  to  expunge  an  order 
made  .li!  ing  the  same  term,  and  an  error  in  its  exercise  cannot 
be  examined  upon  an  appeal.     Sneed  v.  Lee,  '■'<  Dev.,  364. 

16.  The  supreme  court  lias  no  jurisdiction  of  an  appeal  from 
an  order  of  the  i  ourt  below,  allowing  commissions  to  an  admin- 
istrator, tha-1  being  the  exercise  of  a  discretionary  power.  E.r 
parti .    II  n  gldon,  3  Dev..  441. 

17.  The  allowance  of  iper  cent,  additional  interest,  under  the 
act  of  1807,  on  appeal  from  the  county  1"  the  superior  court,  is 
a  matter  of  discretion,  and  cannot  be  revised  in  the  supreme 
court  upon  an  appeal.  BaUinger  v.  Barnes,  3  Dev.,  460.  (See 
Rev.  Cede.  eh.  4.  see.    8.) 

18.  In  the  supreme  court,  the  appellant  is  not  entitled  to 
costs  as  oi  right,  upon  the  reversal  of  judgment  below,  but  may 
even  be  adjudged  to  pay  them  under  circumstances:  Hicks  v. 
{riUiiiin.  4  I  )ev.,  21 7. 

1!'.  When  an  appeal  is  net  allowed  by  law  from  the-  eountyto 
the  superior  court,  the  appeal  should  he  dismissed  with  costs, 
iand  a  procedendo  ordered  to  the  county  court,  ami  where  the 
superior  courl  refused  to  dismiss  the  appeal,  and  from  its  judgment 
there  was  an  appeal  to  the  supreme  court  hy  the  defendant  ;  the 
court  h  was   error   i'n    the  superior  court,    because   it 

ought  to  have  dismissed  the  appeal  from  the  county  court  ;  hut 
eosts  were  awarded  to  the  appellant  againstthe  appellee  andhis 
sureties.     Ibid. 

20.  The  appointment  of  a  guardian  being  a  matter  of  rl 
tion  in  the  superior  court,  no  appeal  will  lie  from  it   to  the  su- 
preme court.     Battle  v.  Vide,  4  Dev.  294. 

21.  When  the  superior  courts  make  amendments  in  their  dis- 
cretion, as  when  a  judgment  is  entered  nunc  pro  tunc,  the 
supreme  court  cannot  revise  the  exercise  el'  the  power.  Bright 
v.  Sug  f.    1  1  >ev.,  4!i± 

ii.  When  the  supreme  court  affirms  the  judgment  of  the  supe- 
rior court,  ordering  a  defendant  in  a  m.  sa,  \>>  he  imprisoned,  it 


74  APPEAL.— VI. 

directs  a  procedendo  to  the  court  below  to  carry  trie  judgment 
into  effect.     Page  v.    WinningJiam,    1  Dev.  and  Bat.,  113. 

23.  Discharging  a  rule  to  show  cause  why  a  new  trial  should 
not  be  granted  is  not  a  judgment,  from  which  an  appeal  can  be 
(taken.     State  v.  Osborne,  1  Dev.  and  Bat.,  114. 

24.  Upon  an  appeal  from  a  judgment  that  an  indictment  be 
quashed,  the  supreme  court  will  not  revise  the  exercise  of  the 
power  to  quash,  hut  decide  upon  the  sufficiency  of  the  indictment, 
as  it  would  appear  upon  a  demurrer,  motion  in  arrest  or  writ  of 
error.     State  v.  Baldtoin,  1  Dev.  and  Bat.  195. 

25.  The  act  of  Assembly,  which  requires  the  transcript,  on 
appeals  to  the  supreme  court,  to  be  filed  within  the  first  seven 
days  of  the  term  next  ensuing  the  appeal,  does  not  apply  to 
appeals  in  criminal  cases.  State  v.  Dickinson,  1  Dev.  and  Bat, 
349.  (See  Rev.  Code,  eh.  4,  sec.  25,  which  makes  it  the  duty  of 
tire  clerk  of  the  superior  court,  to  file  the  transcript  on  or  before 
the  seventh  day  of  the  next  term  of  the  supreme  court.) 

26.  An  appeal  lies  from  the  judgment  of  the  superior  court, 
ordering  a  postmaster  to  be  fined  for  non-attendance  as  a  juror. 
State  v.   Williams,  1  Dev.  and  bat,  372. 

27.  An  appeal  lies  to  the  supreme  court,  from  all  acts  of  the 
superior  court,  professing  to  he  final  adjudications  on  questions 
of  right,  notwithstanding  such  adjudications  may  be  irregular 
and  void.     Darden  v.  Maget,   1  Dev.  and  Bat.,  498. 

28.  An  ex  parte  proceeding,  upon  which  no  judgment  can  be 
.given  affecting  others,  is  not  comprehended  in  the  term  "ac- 
tion," as  used  in  the  90th  section  of  the  act  of  1777,  and  upon 
an  appeal  to  the  supreme  court  from  an  irregular  judgment  of 
the  court  below,  by  a  person  not  a  party  to  the  proceedings,  the 
court  may,  in  its  discretion,  adjudge  that  neither  party  to  the 
appeal  .shall  pay  costs.     Ibid.     (See  Kev.  Code,  eh.  31,  sec  75.) 

29.  The  act  allowing  appeals  to  the  supreme  court,  from 
interlocutory  judgments,  does  not  alter  the  nature  of  the  jndg- 
ments  to  be  reviewed,  but  only  the  time  of  that  review.  Noth- 
ing hut  errors  in  law  can  lie  examined  on  appeals  to  the  supreme 
court  :  hence  an  order  giving  the  defendant  time  to  plead,  unless 
the  plaintiff  will  consent  to  certain  terms,  is  not  tin-  subject  erf 
an  appeal.       Bank  of  the  State  v.   TayUr,  2  Dev.  and  Bat,  250. 

(^r<-  ReV.   Code,  eh.  4,  sec.   23.) 

30.  The  supreme  court  will,  upon  an  appeal,  reverse  a  judg- 
ment of  the  superior  court  refusing  to  act  upon  a  discretion- 
ary power,  when  such  refusal  proceeds  not  upon  the  exerise  of 
its  discretion,  but  upon  the  ground  of  a  want  of  power  to  act. 

Winsloxo  v.  Anderson,  3  Dev.  and  Bat,  9. 

31.  Upon  appeals  from  interlocutory  judgments,  nothing 
should  he  certified  except  so  much  of  the  case  below,  as  is 
necessary  to  present  the  point  to  be  reviewed.  Smith  v.  Collier, 
■  \  1  >o\\  and  Bat.,  67. 

32.  An  appeal  will  not  lie  sustained  when  there  is  no  judg- 


APPEAL.— VI.  75 

merit  between  the  parties,  nor  at  the  instance  of  one  "who  is  not 
a  party  to  the  ean.se.     Silevv.  Blake,  3  Dev.  and  Bat.,  93. 

33.  Where,  upon  a  conviction  for  fornication  and  adultery, 
the  defendants  were  fined  severally,  and  nothing  was  said  as  to 
how  the  costs  should  be  paid,  it  was  held,  that  the  judgment  was 
several  as  to  the  costs  also,  and  that  one  might  appeal  without 
the  other.     State  v.  Jolly,  3  Dev.  and  Bat.  110. 

34.  Appeals  in  erimiiial  cases  annul  the  sentences  rendered 
below,  and  whether  the  sentences  be  approved  or  disapproved, 
they  are  not  to  be  affirmed  or  reversed  in  the  supreme  court; 
but  the  decision  of  that  court  is  to  be  certified  to  the  court  below, 
with  instructions  to  proceed  to  judgment  and  sentence  thereon, 
.agreeably  to   that  decision  and  the  laws  oi'  the   State.     State  v. 

Manuel,  i  Dev.  and  Bat,  20. 

35.  An  order  of  the  superior  court,  either  allowing  or  reject- 
ing a  motion  for  an  amendment,  where  the  court  has  the  power 
to  amend,  is  a  matter  of  discretion  and  cannot  be  appealed  from. 
Anders  v.  Meredith,  4  Dev.  and  Bat.,  L99. 

36.  The  fixing  of  the  terms,  on  which  an  amendment  is 
allowed,  is  a  matter  of  discretion  with  the  court  which  allows  it, 
and  it  is  not  the  proper  subject  of  an  appeal.  Clements  v.  Van 
Nbrdt ".  4  Dev.  and   Bat.,  235. 

37.  An  appeal  will  not  lie  from  a  judgment,  which  is  in  its 
nature  and  professes  to  1  >e  final,  when  it  appears  that  at  the  same 
term,  wherein  Che  judgment  purports  to  b<  rendered,  a  ride  was 
obtained  by  the  party  cast,  to  exclude  from  the  taxed  costs  cer- 
tain witness  tickets,  which  rule  was  ■"  suspended  and  continued 
over  to  the  next  term  .for  hearing."  Goodbread  v.  Wells,  4  Dev. 
and  Bat,  271. 

38.  The  superior  court  may  gra/at  a  new  trial  on  the  ground 
of  excessive  damages,  but  that  is  a  matter  exclusively  within 
its  jurisdiction,  and  cannet  be  revised  in  the  supreme  court  upon 
an  appeal.     Brown  v.  Morris,  4  Dev.  and  Bat.,  4i'!i. 

3D.  Upon  an  appeal  from  an  interlocutory  judgment  in  the 
superior  eeurt  under  the  act  of  1831,  the  supreme  court  ennnot 
receive  a  suggestion  of  the  diminution  of  the  record,  and  there- 
upon take  steps  for  bringing  up  proofs,  or  in  any  respect  altering 
the  form  in  which  the  case  is  sent  up;  and  if  the  judge  of  the 
superioi  court  send  up  points  which  he  has  decided,  without  also 
sending  up  the  facts  on  which  those  points  arose,  or  sending  the 
evidence,  at  least,  on  which  he  grounds  his  opinion,  the  supreme 
court  will  be  unable  to  decide  the  matter  of  law  raised  on  the 
record,  and  consequently  cannot  take  jurisdiction  of  the  case, 
b.ut  will  dismiss  the  appeal  as  having  been  improvidently 
granted.  Morrison  v.  McElratli,  4  Dev.  and  Bat.,  474.  (See  Rev. 
('ode.  ch.  4,  sec.  23.) 

40.  If,  upon  an  appeal  of  one  alone  of  two  or  more  parties  hi 
a  judgment  of  the  county  court,  the  superior  court  proceed  ia 


76  APPEALAVl 

the  caitse,  .-in  1  render  judgment  tlferein  Against  the  appellant, 
and  he  thereupon  appeal  to  the  supreme  court,  the  latter  couri 
will  not  dismiss  the  appeal  for  want  of  jurisdiction  to  entertain 
it,      Stiner  v.  CcttOthom,  4  Dev.  and  Bat,  501. 

41.  On  petitions  lor  distributive  shares,  which  are  in  tho  nature 
(of  proceedings  in  equity.  arJ  appeal  on  account  of  costs  only 
will  not  be  entertained,  except  tinder  very  peculiar  circum- 
stances.   Griffith  v.  Byrd,  2  tred.,  72. 

42.  When  an  interlocutory  decree  below  is  appealed  frotri,  if 
is  the  duty  of  the  court  below  to  slate  specifically,  in  the  base 
transmitted  to  the  supreme  court,  the  question  of  matter:  from 
a  decision  on  which  the  appeal  is  taken.  Jacocks  v.  Mullen,  2 
Ired.,  162. 

4.">.  Where  a  mandamus  is  issued  against  the  justices  of  a 
county,  in  their  official  capacity  as  justices  of  the  county  court, 
and  a  judgement  rendered  against  them,  they  may  appeal,  al- 
though a  minority  of  the  justices  refuse  to  join,  in  the  appeal. 
State  v.  Justices  of  Moore  County,  2  Ired.,  430. 

44.  The  rule  as  to  appeals,  in  relation  to  joint  individuals, 
defendants  to  a  suit,  does  not  apply  to  a  case  of  a  number  of 
persons  in  an  official  capacity.      Ibid. 

45.  All  of  the  plaintiffs,  or  all  of  the  defendants,  must  join  in 
an  appeal  from  the  superior  to  the  supreme  court,  or  the  appeal 
will  be  dismissed.  Williamson  v.  Gilchrist,  5  Ired.,  228  (But 
see  Rev.  Code,  oh.  4,  sec.  27- ) 

44.  Whether,  after  the  defendant  hasclosed  his  evidence,  the 
court  will  permit  the  plaintiff  to  offer  evidence;  which  might 
have  been  ottered  in  the  first  instance,  is  a  matter  of  discretion, 
which  is  not  the  subject  of  appeal.  Smith  v,  Smith,  8  Ired, 
2!  I. 

47.  A  plaintiff  may  appeal  from  3  judgment  hi  his  own  favor. 
Lenoir  v.   South,   1<)   Ired.,  237. 

48.  Where  three  are  sued  in  debt,  and  one  of  the  defendants, 
not  contesting  the  plaintiff's  right  to  recover,  pleads  that  he  is 
the  co-surety  of  one  of  the  other  defendants,  and  a  verdict  is 
found  against  him,  it  is  very  doubtful  whether  he  can  appeal 
at  all  ;  but  certainly  he  cannot  appeal  alone.  Loftin  v.  Korne- 
gay,  11  Ired.,  437.  (One  of  two  or  more  defendants  may  now 
appeal  alone.     See  Rev.  Code.  eh.  i,  sec.  27.) 

49.  When  both  parties  appeal  from  a  judgment  of  the  supe- 
rior court,  (he  clerk  must  make  out  two  transcripts,  so  as  to 
constitute,  as  they  really  are.  two  cases  in  the  supreme  court  ; 
and  when  this  has  been  neglected,  the  clerk  of  the  supreme 
court  will  slate  two  ease's  on  his  docket,  and  charge  costs  in 
each  en  e.     Dsrere'tx  v.  Bun/ioyn,  11  Ired.,  4!)0. 

50.  If.  alter  the  decision  of  an  appeal,  the  superior  court  refu- 
ses to  obey  the  mandate  of  the  supreme  court,  an  appeal  cannot 


APPEAL.J-VI.  77 

again  be  bad,  for  tlicTe  is  no  question  to  be  reviewed ;  but  the 
party  aggrieved  must  apply  for  a  mandamus.  Ray  v.  Bay,,  12 
I  red.,  24. 

51.  Where  the  superior  court,  upon  the  facts  submitted  to  and 
determined  by  it,  refused  a  motion  to  dismiss  a  guardian,  it  teas 
}ie!d  that  an  appeal  could  not  be  taken  from  their  decision. — 
Jones  v.  ./tuns,  12  Ired.,  98. 

52.  A  party  cannot  appeal,  when  the  judgment  is  in  his  favor 
and  just  as  he  wanted  it.     Hole  v.  Carter,   12  [red.,  327. 

53.  [t  is  only  when  both  parties  except  to  the  judgment  as 
eiTo  nous,  that  both  have  a  ground  for  appeal.     Ibid. 

54  Where  then'  is  an  appeal  from  an  interlocutory  order  in  a 
cause,  and  the  parties  proceed  to  the  trial  of  the  cause,  without 
waiting  for  the  decision  of  the  matter  appealed  from,  the  appeal 
will  be  dismissed  at  the  costs  of  the  appellant.     Lovcv.  Johnston, 

12  [red.,  367. 

55.  Upon  the  plea  of  "nul  tiel  record,"  whether  the  record 
exists  is  a  question  of  fact ;  what  is  its  effect  is  a  question  of 
law.  From  a  decision  on  the  former,  the  party  cannot  appeal  ; 
but  from  a  judgment  on  the  latter,  he  may.      Tricev.  Turrentine, 

13  [red.,  212. 

56.  Where  a  judgment  on  the  plea  of  "m,l  tiel  record"  is  re- 
versed on  appeal,  the  ease  must  be  sent  back  for  the  judgment 
of  the  court  below,  as  to  the  fact  of  the  existence  of  the  ri  cord. 
Ibid. 

57.  The  decision  of  the  judge  below,  as  to  what  an   i 
ment  alleged  to  be  forged  contained,  as  decided  1  •.    irigpecl  on 
cannot  be  reviewed  upon  appeal  to  the  supreme  court. 
Weaver.  13  (red.,  491. 

58.  Whether  a  witness,  who  has  been  onceexami  i 

re-ex  imined  is  a  question  of  discretion  for  the  judge  below,  and 
no  appi  al  lies  from  his  decision.     Ibid. 

59.  An  appeal  from  au   order  of  the  superior  court  granting 
an  alternative  maiidamus,  after  the  supreme  court    had   i    i 
former  appeal  from  an  order  on  a  rule,  decided   that  the  relators 
were  entitled  to  an  alternative  mandamus,  is-]  State 
v.  Justices  of  Anson,  Busb.,  •".'  '. 

60.  Where  the  superior  court  has  the  power  to  allow  am 
amendment,  an  appeal  will  not  lie  from  its  discretionary  cxer-: 
cise  of  the  power ;  but  if  it  allows  an  amendment  when  il  !a$s 
no  power,  an  appeal  will  lie  to  the  supreme  court.  Pfttfli/v  ,'. 
///■  den,  Busb.,  3?0.  ° 

61.  The  judgment  for  costs  under , the  act,  Ilev  Stat  ch  J 
sec.  9,  is  a  matter  of  discretion  in  tbe  superior  court,  and  is  not 
the -subject  oi  an  appeal.  McRae  v.  Leary,  1  Jones,  91  (See 
.hew  Cod«    ch.  1.  sec.  9.)  '     v" 

''-•  '"  ""  ;"|j"1  of  ejectment,  where  the  plaintiff  declared 
"1  °"  tlae  '•""•—  oi  several  lessors,  upon  three  several  counts  a 


78  APPEAL.— TI 

refusal  to  strike  out  two  of  the  counts,  upon  the  motion  of  the 
defendant,  was  a  matter  of  discretion  from  which  an  appeal 
would  not  lie  to  the  supreme  court.  Pigrjott  v.  Cheers,  1  Jones,- 
356. 

63.  It  is  a  matter  of  discretion  with  the  superior  court,- 
whether  it  will  make  an  order  on  tvie  plaintiff  to  give  further 
security  for  costs,  and  no  appeal  lies  from  iis  decision  to  the 
supremi   court.     State  v.  Cox,  1  Jones,  373. 

64.  An  order  of  amendment,  that  an  order  made  at  a  formei 
term,  bat  not  then  entered,  shall  be  entered  nunc  j>rn  tunc,  is 
not  the  subject  of  an  appeal  to  the  supreme  court.  Mayov. 
Whitson,  2  Jones,  231. 

65.  Where  a.  superior  court,  having  a  discretionary  power  to 
pronounce  upon  a  matter  decided  in  a  county  court,  gives  a 
judgment,  not  in  the  exercise  of  such  discretion,  but  in  obedi- 
ence to  a  supposed  principle  of  law,  as  to  which  it  was  mistaken, 
an  appeal  will  lie  to  the  supreme  court,  and  the  judgment  may 
be  reversed.     PoweU  v,  Jojding,  2  Jones,  400.. 

66.  An  amendment  made  or  ordered  by  the  superior  court,-  in- 
the  exercise  of  its  discretionary  power,  cannot  be  revised  upon 
an  appeal  to  the  supreme  court.  Ingram  v.  McMwris.  2  Jones, 
450. 

67.  "Where  a  judge  is  vested  with  a  discretionary  power,  as  in 
making  the  appointment  <<f  an  administrator;  but  refuses  to 
exercise  such  discretion,  and  appoints  one  whom  he  erroneously 
supposed  he  was  bound  in  law  to  appoint;  it  teas  held,  that  an) 
appeal  would  lie  to  the  supreme  court,  by  which-  his  decision 
would  be  reversed,  and  the  judge  below  directed  to  make  an 
appointment,  in  the  exercise  of  his  discretion.  Stephenson  v. 
Stephenson,  4  Jones,  472. 

68.  The  judgment  of  the  superior  court,  that  there  is  a  neces- 
sity for  a  public  road  between  certain  termini,  cannot  be  re-ex- 
amined in  the  supreme  court.      Pridgen  v.  Bannerman,  8  Jones, 

5a 

(ill.  The  superior  court  lias  no  jurisdiction  to  decide  whether 
a  deposition  has  been  regslarly  taken  except  on  appeal  from  the 
clerk's  decision  in  pursuance  of  the  Rev.  Code,  ch.  31,  see.  li)'..  or 
when  it  is  offered  to  be  read  as  evidence  on  the  trial  ;  therefore, 
an  appeal  under  ch.  4,  sec-  23,  of  the  Eev.  Code,  from  the  deci- 
sion of  a  judge  on  that  question,  dees  not  lie  to  the  supreme 
court,  unless  the  record  shows  that  the  judge  had  acquired 
jurisdiction  in  one  of  these  two  ways,  lli.e  v.  Fisher,  2  Winst. 
84. 

See  (Clerks,  and  Clerks  and  Masters — Of  the  responsibility  of 
fehem  and  their  sureties,  2.)  (Contempt,  X.)  (Habeas  Corpus,. 
1.)     (Sheriff— Amendment  of  sheriff's  returns,  3.) 


APPRENTICE 


APPRENTICE. 

1.  .V  bond  under  the  act  of  1762,  ( R.  < '.,  ch.  5y.sec.  4,)  which  di- 
pectsthe  indentures,  onJbinding  out  apprentices,  to  be  made  with 
the  chairman  of  the  county  courts  and  his  "  successors,"  is  good, 
though  ••  successors"  be  not  named,  and  a  suit  may  be  sustained 
in  tbe  name  of  the  successor.     Anonymous,  1  Hay,  144,  (lii'i.) 

2.  In  an  action  for  seducing  a  colored  apprentice,  bound  out 
by  the  county  court,  the  defendant  cannot  avail  himself  of  any 
defect  in  the  bond  required  by  the  act  of  1801,  not  to  remove 
the  apprentice  out  of  the  ccwasty,  nor  of  the  fact,  that  no  such 
bond  was  given.  J&nes  v:  Mills,  2  Dev.,  5  in.  (See  Rev.  Code, 
eh.  5,  sec.  o.) 

3.  An  indenture'  of  apprenticeship  taken  under  the  act  of 
1762,  but  which  neither  binds  the  master  to  teach  the  appren- 
tice a  certain  trade,  nor  to  read  and  write,  and  which  svas  made 
by  the  chairman  on  behalf  of  the  justices  and  ••their.'  instead 
of  l;his"  successors;  is  valid  as  between  the  master  and  one, who 
harbors  his  absconding  apprentice.     Dotal  v.  Davis,  4  Dev.,  61. 

4.  Every  binding  of  an  apprentice,  under  the  aet  of  1702. 
must  lie  by  indenture;  ami  every  obligation^  thereby  imposed 
upon  the  master,  which*  is  to  be  vindicated  by  an  action.,  must 
be  the  subject  of  express  stipulation.  But  it  is  otherwise  with 
the  payment  of  the  allowance  to  apprentices  at  the  expiration 
of  their  apprenticeship,  because  the  remedy  for  its  nonpayment 
is  by  petition.     Ibid. 

5.  An  indenture  of  apprenticeship,  which  does  not  conform  to 
the  act  of  1762,  is  net  absolutely  void,  but  only  voidable  by  the 
parties  to  it;  and  as  to  strangers  it  creates  the  relation  of  mas- 
ter and  apprentice.  The  apprentice  is  not  a  party  to  it,  and  it 
seems  it  can  only  be  avoided  by  the  county  court.  And  if  the 
apprentice  be  a  parly  to  it,. an  avoidance  of  it  by  him  must  be 
by  a  formal  act,  with  notice  of  the  intent.  Neither  he  nor  a 
stranger  can  allege  an  abandonment  of  the  service,  as  an  avoid- 
ance.    Ibid. 

li.  If  bhe  owner  of  a  slave  bind  him  as  an  apprentice;  and 
covenants  that  he  shall  faithfully  serve  his  master,  &c,  and  the 
master  covenants  to  teach  the  apprentice  a  trade,  these  cove- 
nants are  mutual  and  independent,,  and  a  breach  on  one  side  is 
no  bar  to  an  action  for  a  breach  on  the  other.  Clancy  v.  Oar- 
rntin.  1  Dev.  an. I  bat..  402'. 

7.  A  covenant  to  teach  an  apprentice,  or  cause  him  to  be. 
taught,  a  trade,  is  not  an  absolute  engagement  that  he  shall  at 
all  events  learn  the  trade,  but  is  only  a  covenant  for  faithful, 
diligent  and  skillful  instruction.     Ibid. 

8.  A  covenant  in  an  indenture  of  apprenticeship  to  teach  tht 
apprentice  to  read  and  write,  according  to  law,  is  not  an  engage- 


80  Al'l'KKXTirh. 

men!  that  the  apprentice  will   or  shall   learn  to   rend  airawriti 
And  it"  the  apprentice  be  incapable  oflearning  to  read  and  write, 
after  proper  means  have  been  taken  to  teach  him,  the  covenant 
is  not  broken.     iVyatt  v.  Morris,  2.  Dev.  and  Bat,,  108. 

9.  The  death  of  the  master  excuses  the  performance  of  the 
covenant  for  teaching,  boarding  &c,  required  to  be  inserted  in 
the  indenture  of  apprenticeship;  btit  if  he  covenant  to  do  a 
oollateral  act,  as  to  giV<  the  apprentice  a  horse,  his  executors  are 
bound  to  perform  ft.     Goodbread  v.  Welti,  2  Dev.  and  Bat.,  47$ 

In.  A  master  has  the  whole  term  of  apprenticeship  to  perform 
his  stipulation  to  teach  the  apprentice,  and  if  he  die  without 
nerlbiiuing  it.  but  so  long  before  the  expiration,  as  to  leave  time 
fcboithe  performance  had  he  lived,  he  will  be  excused,  and  ho 
action  will  lie  for  a  breach.     Ibid, 

11.  A  master  of  an  apprentice  cannot  assign  or  transfer  his 
right  >ver  the  apprentice  to  another  person,  Fulfill  v.  Van/r>,$ 
I  red.,  402. 

12.  The  recital  oi  thi  age  of  an  apprentice  in  :the  indenture 
<af  apprenticeship  is  conclusive  of  that  fact,  in  a  suit  by  a  mas- 
ter against  a  third  person  Cur  harboring  the  apprentice.  Such 
recital,  however,  is  dot  conclusive  against  the  apprentice,  when 
he  is  prejudiced  thereby,     Hoolcs  '•■    Perkins,  Bosh.,  21 

,':'.   The  county  court  may  correct  a    mistake  in  tie'  recital  ot 

,i„     ■  ■-,,.  of  an  apprentice,  'ait  the  rc-ital.  as  thus  {fen  'ted,  can- 

,,i    |    :■<-.  relation  back,  so  as  to  make  a  straiu-  r  a  I  <  raser,  in 

.  •  ",  ion   l\  thereto  taken  the  apprentice  infch  i  service. 

IMS.      '  '   . 

!.(._   i;    ...  filic  duty  of  tl       101  ittri     ill   binding  out   an 

apprentice,  to  sielepl    as  a    master  a   persi    i     tdio    tvill    in    their 

judgment,  ia:i1  iftil,>  discharge  the  dutj   which  he  assumes;  and 

!'  i  h,    .  ua   ter  to  the  apprentice  is  one   of  pi  al 

twist  and 'confidence.      Hence,  upon  the  death  of  the  master,  no 

riglii  ve  i  mill    representive ;  and    hence   also   the 

,  ipprentici  of  his  services,  because  it  is 

ifttent  with  i         tatn      of  the  trust,  and  against  the  policy 

:;IW.     Therefor       :       s  the  consideration  of  a  promissory 

nclnan  i  dd  thai  the  note  was  void. 

AJS'm  ■       -      '  "' ! '■''   Busb 

j.-,  i  ,,.,  ,  |  ;:, ....  Sta1  .  ■  :  sec.  L,  the  county  courts  have 
power  to  biaidi  sod  ".all  Iree'basi  born  children,"  without  refer- 
,.,„.,.  to  the  eouii  li  ■■■  o  -  '  the  mother ;  the  provision 

tofbindino-   •;  I  ■•      Mldren    of  free  persons   of  color,  whose 

parents  db  no1  haJ»tudJi  enaploj  fch  f  time  in  some  honest  and 
industrious  occupation,  "applies  onilyto  the  legitimate  children 
of  t'l-v  negroes,  Widgett  v.  McB.ride,  3  Jones,  21.  (See  Rev. 
Code  ;h.  5,  sec,  1.  which  adds  "of  color"  to  the  words  "all  tree 
base  born  children.") 

IQ    \\\u  ,-,.  a  county  court  has  rightfully  and  properly  bound 


APPRENTICE.— ARBITRATION  AND  AWARD.— I.    81 

"out  an  apprentice,  it  cannot  order  the  cancelling  of  the  inden- 
tures of  a&prenticeship,  where  then:'  is  no  default  of  the  master. 
Owens  v.  Chaplain,  3  Jones,  323.     (See  Rev.  Code,  ch.  5,  sec.  3.) 

17.  Although  it  is  visual  to  have  tin-  apprentice  present  in 
court  when  he  is  bound  out,  yet  there  is  no  provision  in  the 
statute  which  makes  it  necessary  to  do  so.     Ibid. 

18.  Where  a  slave  of  ordinary  capacity  was  apprenticed  to  a 
ship  carpenter  and  caulker  to  learn  his  trade,  it  was  held,  to  be 
no  defence  to  an  action  For  a  breach  of  covenant,  that  the 
apprentice  was  obstinate  and  unwilling  to  learn  the  trade,  when 
it  did  not  appear  that  the  master  had  used  the  ordinary  means 
for  enforcing  obedience.     Bell  v.  Walker,  5  Jones,  43. 

19.  A  free  infant  of  color,  who  is  rightly  hound  as  an  appren- 
tice by  the  county  court  of  a  certain  county,  remains  subject  to 
the  jurisdiction  of  that  court  wherein  he  was  bound,  until  he  is 
discharged  in  the  manner  prescribed  in  the  Revised  Code,  ch.  5, 
see.  ft.     Pruev.  HlijhL  6  Jones.  265      Appendix. 

20.  A  father  cannot  bind  as  an  apprentice  his  child  under 
twelve  years  of  age;  and  if  the  child  be  above  that  age,  the 
deed  by  whi<p  he  is  bound  must  be  executed  by  him  as  well  as 
by  the  lather.     Musgrove  v.  KornegAy,  1  Jones.  71 


ARBITRATION  AND  AWARD. 


I.  Construction    of  submissions  fend 
awards. 
II.  Exceptions  to  awards,  how  made, 
•ill.  When    the   reference   may   be  set 
aside. 


IV.  When  an  award  h  to  be  sustained 

or  set  aside. 
V.  Remedy  on  awards. 


I.       CONSTRUCTION    OF    SUBMISSIONS    AND    AWARDS, 


1.  Awards  are  to  be  construed  liberally.  In  mercantile  trans- 
itions not  admittingof  certainty,  nice  objections  ought  not  to 

ib  award.  If  that,  to  win  &  the  objection  of  uncertainty 
is  made,  can  be  ascertained  <■;.  the  context,  the  objection  shall 
not  prevail     Berretzv.  Patterson,,  Tay,  37,  (27.) 

2.  'i  he  meaning  of  the  rule  that  an  award  must  be  mutual  is, 
that  the  tiling  awarded  to  be  done  shall  be  a  final  discharge  of 
all  future  claims  byjjtbe  party  in  vims,-  favor  the  award  is  made, 

iga         I  for  the  caus*   submitted.     Ibid. 

3.  .'«:i  award  which  merely  directs  a  sum  of  money  to  be  paid, 
but  without  stating  the  matter  of  controversy,  or  directing  a 
release  or  saying  that  the  payment  shall  be  in  satisfaction  of 

6 


82  ARBITRATION  AND  AWARD.— I. 

any  specified  injury  or  demand,  may  be  rendered  sufficiently 
certain,  final  and  mutual,  by  averments  connecting  the  award 
with  the  submission.     Bryant  v.  Hilntr,  Conf.   Rep.,  313,  (398.) 

4.  A  reference  as  to  a  disputed  fact  is  different  from  a  submis- 
sion to  arbitration ;  the  latter  implies  an  exercise  of  judgment, 
and  gives  an  authority  to  decide ;  the  former  requires  only  the 
recollection  of  a  fact,  and  the  statement  of  it  as  a  witness 
Hence,  the  statements  of  such  a  referee  is  no1  conclusive.  Jl'il- 
Ha  lis  v.  Wood,  I  Dev.,  82. 

5.  If  arbitrators,  to  whom  a  question  is  referred,  decline  ren- 
dering a  judgment  and  only  declare  an  opinion  upon  it,  or  if, 
mistaking  the  subject  submitted  to  them,  they  adjudicate  not 
on  the  controvi  rsy  of  title  between  the  parties,  but  on  the  con- 
flicting claims  between  one  of  the  parties  and  a  third  person, 
the  parties  will  not  be  bound  thereby;  because  in  the  one  case 
there  is  no  award,  and  in  the  other  it  is  not  the  matter  sub- 
mitted.    Alston  v.  Hamlin,  2  Dev.  and  Bat.,  115. 

6.  A  letter  written  bythe  plaintiff  with  the  concurrence  of  the 
defendant,  to  two  persons,  calling  upon  them  to  say  how  he,  the. 
plaintiff,  ought  to  dispose  of  certain  slaves,  which  lie  had  given 
tsince  1806  by  parol  to  Ids  deceased  da  id  son  in-law, 
between  his  grand-daughter  and  tl 

■  another  grand-daughter,   who  had  died,   is  l 
arbitration  of  the  plaintiff's  title  to  tin     ;  in  :  and 

no  expression  of  opinion  by  the  person-'  at  form 

soever  made,  can  be   obligatory    upon  the   plain'tifl  to  such 

title.     Ibid 

7.  If  an  action  of  ejectment be,  with  th  i  theparti,es 
by  a  rule  of  court,  referred  to  certain  arhi  rators,  and  they  make 
an  award  that  the  defendant  was 

ejectment,    and   shall   pay   nominal    damages    and    costs,  upon 

which  a  judgment  is    rendered    accordi  »gly,   and  the  plaintiff's 

lessor  put  into  possess:.];  of  the  term  by  a  writ  for  thai  purpose, 

the  defendant  is   not  estopped  by   such  and  j 

from  afterwards  setting   up  title-   to   tli<  ■•  e,  in 

the  action  of  ejectment,  the  righi  to  I  is  not  put  in  issue 

and  detei  mined,  an  I  a  referew  of  court,  to 

arbitrators  cho  the   parties.   , 

more  than  v.  is  in    issue  before    the  court.     Hardin  v.  Beatty,  I 

Dev.  and  Bat.  381. 

8.  Where  an  action  of  ejectment  was   referred,    by  a    rule  of 
court,  to  arbitrators,  and  they  awarded  as  follows  :    "  We  find  the  . 
plaintiff  in  the  ease,  Mary  Duncan,  h      at  various  times  paid  to 
Roland  Duncan,  in  cash,  notes  and  1,544  ; 

we  therefore  award  to  her  three-fourths  of  the  whole  amount  of 
land  purchased  of  the  executors  of  Charles  Finley  dee'd,  to  be 
taken  off  of  the  upper  part  of  said  land."  it  was  held  that  this 
award  was  not  only  uncertain,  but  that  it  went  beyond  the  ruh 


ARBITRATION  AND  AWARD.— I. 

*)f  reference,  and  therefore  the  court   could  not  enter  an^  judg- 
ment uponit.     Dun  •■  m  v.  Dun  ■mi,  1  Ired.,  466. 

9.  The  power  of  arbitrators  is  derived  entirely  from  theagree- 
ment  of  the  parties  as  expressed  in  the  submission,  and  their 
award  must  be  male  in  strict  a  :  ■■■  ith  it.  and  must 
neither  go  bi  yond  nor  omit  any  thing  embraced  in  it.  Cidlifer 
v.  GilMJLm,  9  Ired,  126. 

10.  Where  the  words  of  an  arbitration  are  ambiguous,  such  a 
construction  ought  to  be  given  to  them,  as  will  best  coincide 
with    .i  s  apparent  i  l1       iou  of  the  arbitrators.     Ibiil. 

11.  Where  the  submission  was  in  the  foUowing  words:  "We 
hereby  bind  ourselves  to  abide  the  damage  awarded  to  C.  C.  by 
C.  J.  and  W.  W.  for  the  overflowing  a  certain  tract  of  land,  by 
our  mill-pond,"  and  the  award  was,  "We,  the  undersigned, 
have  this  day  viewed  the  land  belonging  to  C.  C,  covered  by 
the  water  of  the  mill,  late  the  property  of  G.  and  B.,  and  do 
assess  the  damages,  which  the  said  C.  C.  has  sustained  for  the 
year  1847,  I  £26,"  and  so  od  for 
four   successive  years,  it    was    I              I  rbitrators   had 

1    was    void,    bei  ause  the 
nt  intention   of  i   was   only   to  refer  the 

ae  of  the  submission.     Ibid. 

12.  '  lit  Mas  pendin  on  a  not  V  and 
B.  and  B  had  died  and  A  h  id  been  :  pp  anted  his  administrator, 

was       ainst  1dm  pe  rand  as  admi 

de  :   ••  Refern 
teofB,  and  to   award,    and    if  they 
impire,  and  their  award  to  be  a  rule 
art."     The  refei   es  returned  the   following  award:  "This 
m referred  to  us  to  take  an  account  of  the  ad- 
ministration of  the  said  A.  and  to  make  au  award  in  the  matters 
in  controversy  d,    in   taking   the   said  account,  that  the 

amounl  ;hers   in   the  hands  of  the  said  A  exceeds  the 

i  of  receipts  bj  the  sum  of  $513,  &c.     Finding,  th   refq-re, 
trator  has  no  assets,  we  award  thai  the  plaintiff 
pay  the  costs  of  this  suit."      h  that  the  only  matter  sub- 

mitted to  th    referees  -  lount  o    th       »sets  of  B,  in  the 

hands  of  A,  and  that  their  award  as  to  any  other  or  further  mat- 
ters was  void.     Cowan  v.  .  ■...". 

Id.  An  arbitration  bond,   after  providing  for  the  submission 
led  thus  :   ■  the  whole  or  any 

twi  i  oi  to  be 

void,  o  e  to  remain  in  lull   force   arid   effeel . 

'is  was  and-  e  of  the 

award.      Kiskr  \ .  K  i     ,  5  Ji        .   191. 

14.  Where  arbiti  irpos«   of  settling 

aU  matters  relating  to  a  parti  liey  have   the    power  of 

loeid     ;  es,  and  v.  h  ,  of  the 


«4        ARBITRATION  AND  AWARD.— L-II.-III.-IV. 

partnership  effects,  and  their  decision  upon,  the  question  is  bind- 
ing upon  the  partners.     Masters  v.  Gardner,  5  Jones,  298. 

15.  Where  two  persons  submitted  to  arbitration  certain  mat- 
ters relating  to  the  "  clearing  out  "  a  canal,  and  the  arbitrators 
awarded  that  the  defendant  should  pay  one-sixth  part  of  the 
expense  of  "  clearing  out  "  the  canal,  it  was  held  that  he  was  not 
thereby  bound  to  pay  any  part  of  the  expense  of  "deepening" 
the  canal.     Noble  v.    Wiggins,  7  Jones,  535'. 

See  (Evidence — Parol  evidence,  when  admissible,  42.) 

II.       EXCEPTIONS    TO    AWARDS,  -HOW   MADE. 

1.  Upon  a  reference  to  arbitration  by  a  rule  of  court,  and  a 
return  of  the  award,  the  exceptions  of  either  party  and  the 
answers  thereto  ought  to  be  in  writing,  supported  by  affidavits, 
when  necessary.      Cain  v.  Pullam,  1  Hay,  173,  (198.) 

IIV     WHIN  THE   REFERENCE   MAT   BE   SET  ASIDE.. 

1.  A  party,  whose  cause  has  been  referred  to  arbitrators,  by  a 
rule  of  court,  cannot,  in  this  State,  revoke  the  arbitration,  with- 
out the  permission  of  the  court,  that  made  the  order.  Tyson  v. 
Robinson,  3  Ired.T  333. 

2.  Independent  of  an  order  of  the  court;  the  rule  of  reference 
can  only  be  revoked  by  an  act  of  law,  as  by  the  death  of  either 
of  the  parties,  or  by  the  marriage  of  a/eme  sole,  one  of  the 
parties.     Ibid. 

3.  Unless  a  rule  of  reference  be  expressly  limited  in  its  dura- 
tion, it  continues  in  force  until  it  is  executed,  or  revoked  by  act 
of  law,  or  discharged  by  the  court.    Ibid. 

4.  A  submission  to  an  award  respecting  the  title  to  land, 
though  made  according  to  the  recommendation  of  the  testator 
who  devised  it,  must  be  by  deed  between  the  parties,  and  can- 
not be  by  parol.     Crissman  v.  Crissman,  5  Ired.,  498. 

IV.       WIIERE    AN    AWARD    IS    TO    BE    SUSTAINED,    OR    SET    ASIDE. 

1.  An  award  ought  not  to  be  set  aside,  unless  it  certainly 
appears  to  lie  against  law,  ami  that  in  a  ease  where  the  arbitra- 
tors meant  to  decide  according  to  law.  Jones  v.  Frazier,  1 
Hawks,  379. 

2.  If  an  action  of  ejeetmenl  be  referred  to  arbitrators,  anaward 
stating  the  cause  to  lie  pending  between  the  lessor  i  f  the  plain* 
tilt  and  the  tenant  in  possession,  without  noticing  the  fictitious 
parties,  is  sufficient.      Q'N&al  v.  Butler,  3  Dev.,  94. 

3.  If  a  cause  be,  by  a  rale  ef  court,  referred  to  certain  arbitra- 
tors, or  a  majority  of  them,  an  award  made  by  a  majority  of  the 
referees  named  will  not  be  vitiated  by  other  persons,  not  named 


ABBITBATION   AND  AWARD.— IV.  85 

in  the  rule  of  reference,  joining  in  and  signing  the  award. — 
Carter  v  Sams,  4  Dev.  and  Bat.,   L82. 

4.  The  court  will  always  intend  everything  in  favor  of  an 
award,  and  will  give  such  a  construction  to  it,  that  it  may  be 
supported,  if  possible.  Therefore,  where  the  arbitrators,  to 
whom  a  cause  was  referred,  returned  an  award,  stating  that 
"we  agree  that  E.  J.,  (the  defendant.)  pay  all  costs,  and  assess 
the  plaintiff  !s  damages  to  one'hundred  dollars,"  it  will  be  intended 
that  the  defendant  is  awarded  to  pay  the  one  hundred  dollars  as 
well  as  the  costs  to  the  plaintiff.     1  bid. 

5.  An  award  is  sufficiently  certain,  winch  is  certain  Ao  a  common 
intent;  and  the  court  will  not  intend  an  award  to  be  uncertain, 
but  the  uncertainty  must  appear  on  the  face  of  the  award  or  by 
averment.     Ibid. 

6.  Where  abitrators  undertake  to  decide  according  to  law.  and 
they  mistake  the  law,  the  award  is  void;  unless  the  whole  ques- 
tion submitted  was  a  dry  question  of  law,  and  not  involving  any 
controversy  of  fact,  in  which  last  case^  it  seems  the  decision  is 
conclusive,  whether  right  or  wrong  in  point  of  law.  Crissrrum 
v.  Crissman,  5  Ired.,  498. 

7.  In  an  action  of  ejectment,  where  an  arbitration  has  been 
agreed  upon,  and  the  award  was  not  made  until  after  the 
death  of  one  of  the  lessors,  //  was  held,  that  the  award  was  void; 
for  that  though  John  Doe  be,  by  a  fiction  of  the  law,  the 
plaintiff  in  the  action,  yet  the  court  will  not  suffer  such  a  fiction 
to  work  an  injury  to  the  parties  really  interested.  Whitfield  v. 
Whitfield,  8  lied.',  163. 

o\  An  award  must  be  signed  by  the  arbitrator,  and  made 
known  to  the  parties  and  delivered,  before  it  can  be  received  in 
evidence  as  binding  upon  them.  Morrison  v.  Russell,  10  Ired., 
273. 

9.  Tenants  in  common  agreed  to  a  division  of  their  lands  and 
covenanted  that  it  should  be  referred  to  A  and  B,  to  value  their 
respective  parts,  and  that  the  party  refusing  to  abide  by  the 
award  should  pay  a  certain  sum  as  stipulated  <Iii>ii<kj<  s,  and  not 
as  a  penalty;  and  further,  that  "the  valuation  should  be  made 
upon  such  examinations  and  surveys,  as  the  referees  might  think 
proper,  of  which  they  were  to  be  sole  and  exclusive  judges.1' 
'flic  award  having  been  made,  and  one  of  the  parties  objecting. 
it  was  weld,  upon  a  suit  for  the  stipulated  damages,  that  the 
award  was  good,  notwithstanding  but  one  of  the  referees  made 
the  survey,  the  other  relying  upon  such  survey  and  his  own 
previous  knowledge  of  the  land,  the  referees  having,  by  the  terms 
of  the  submission,  a  discretionary  power  to  make  such  surveys 
as  they  might  think  proper.     Devereux  v.  Burgivyn,  ll  Ired.  490. 

10.  An  award,  made  under  a  submission  out  of  court,  cannot 
be  impeached  in  a  court  of  law,  by  showing  that  it  was  procured 

&  b    ii,;)ile  unfairly,  and  by  the  exertion  of  undue  influence;  nor 


86  ARBITRATION  AND  AWARD.— IV. 

by  showing  that,  after  the  submission,  one  of  the  arbitrators  had 
become  addicted  to  intemperance,  to  such  an  extent  as  to  impair 
his  mind,  unless  it  be  further  shown  that  at  the  time  he  made. 
bis  award  he  was  so  drunk  as  not  to  know  what  he  was  doing, 
or  his  intemperance  bad  been  carried  to  such  an  extent  as  to 
reduce  him  to  a  state  of  fatuity,  so  that  he  had  no  mind.  But 
where  an  award  is  made  under  a  rule  of  court,  these  principles 
do  not  apply;  for  in  such  case  the  court  retains  a  supervising- 
power,  and  will  see  that  the  award  was  not  obtained  by  unfair- 
ness or  undue  means,  when  a  summary  judgment  is  moved  for. 
Ibid. 

11.  An  award  must  be  certain,  and  this  certainty  must  appear 
on  the  face  of  the  award;  it  must  also  be  final  is  to  all  the  mat- 
ters submitted,  so  as  to  put  an  end  to  the  suit.  Gills  v.  Berry, 
13  Ired.,  388. 

12.  Where,  in  addition  to  the  general  rule  for  an  arbitration, 
it  was  entered  of  record  that  "it  is  further  ordered  by  the  con- 
sent of  parties,  that  the  said  referees  enquire  and  ascertain  the 
dividing  line  of  the  lands  of  the  said  parties,  and  that  they  lay 
off  and  establish  the  lines,  which  they  shall  ascertain,  &c,  and 
cause  a  correct  plot  to  be  made,  &c.,  and  that  the  said  parties, 
upon  said  dividing  line  being  so  established,  make  and  exe- 
cute such  releases  to  each  orlher,  that  may  be  necessary  and 
proper,"  and  the  referees  made  a  report  according  to  the  sub- 
mission; it  was  lull],  that  the  court  should  not  set  aside  this 
report,  but  leave  it  to  the  parties  to  assert  their  claims  in  a  court 
of  equity,  as  upon  a  contract.     Ibid. 

13.  It  is  no  objection  to  an  award  of  arbitrators,  to  whom  an 
action  of  ejectment  has  been  referred,  to  direct  the  amount  of 
the  damages  sustained  by  the  trespass  to  be  entered  for  the 
plaintiff.     Miller  v.  Mehlior,  13  [red.,  439. 

14.  It  is  no  valid  objection  to  an  award,  in  an  action  of  eject- 
ment, that  the  arbitrators  assessed  no  damages  against  the 
defendant.     Moore  v.  Gherkin,  Busb.  73. 

15.  Where,  in  a  question  of  disputed  boundary,  the  arbitrators 
fix  on  a  line  as  the  dividing  line  between  the  parties,  their  award 
is  a  full,  certain  and  final  decision  of  the  matter  in  dispute. 
Ibid. 

16.  Where  the  identity  of  ;i  boundary  line  between  the  parties 
was  submitted  by  a  deed  to  arbitrators,  and  they  by  ;f  deed 
agreed  on  a  line  and  marked  it,  it  was  held  that  the  award 
bound  both  parties  as  to  the  line,  though  it  were  different  from 
the  true  one.     GayWrdv.  Gaylord,  3  Jones,  367. 

17.  A  provision  in  a  bond,  to  submit  to  certain  arbitrators 
■'the  division  and  settlement  of  our  father's  estate,"  necessarily 
involes  the  enquiry,  what  constitutes  that  estate.  An  award, 
therefore  thatja  certain  slave,. claimed  by  the  executor  in  his  own 
right,  should  be  sold,  and  the  money  distributed  among  all  the- 


ARBITRATION  AND  AWARD.—  IV.  87 

parties  to  the  submission,  was  within  the  scope  of  the  arbitra- 
tion bond,  and  was  binding  upon  the  executor.  Brown  v. 
Broion,  4  -Tunes,  123. 

18.  An  award  on  a  reference  to  arbitration  will  be  binding,  if 
there  b  difference  of  opinion  between  the  parties  as 

to  their  rights,  although  there  may  not  hive  been  a  legal  cause 
of  action.     FincRy  v.  Ray,  5  Jones,  12."). 

lit.  -V  claim,  which  was  entertained  and  preferred  in  good 
faith  by  one  of  the  parties  against  the  other,  though  not  strictly 
allowabl  in  law  or  equity,  was  held  to  be  a  good  foundation 
for  an  award,  and  that  the  award  thereon  might  lie  sustained. 
Parrish  v.  Strickland,  7  Jones,  504. 

20.  Where  an  arbitrator  disposes  of  matter  referred  to  him, 
as  well  as  of  matter  not  so  referred,  and  the  two  are  in  their 
nature  .  it  is  the  duty  of  the  court  to  give  judgment 
for  that  whirl)  is  within  the'  terms  of  the  submission,  and  reject 
the  residue.     Griffin  v.  Hadley,  *  Jones,  82. 

21.  An  arbitrator  haB  no  right  to  award  himself  a  fee  for  his 
services,  unless  the  power  to  do  so  is  expressly  contained  in  the 
submission,  and  the  award  of  such  fee  must  be  rejected.      Ibid. 

22.  Where  an  art  ion  of  trespass  quart  clausumj 'regit  was  refered 
to  arbitrators,  aid  they  found  the  title  to  the  locus  in  quo  to  be  in 
the  plaintiff,  and  assessed  damages,  it  was  lieldto  be  a  suffi- 
cient award,  and  that  it  was  not  necessary  for  the  arbitrators  to 
fix  the  boundaries  between  the  parties.  Bollard  v.  Waldo,  8 
Ji  aes,  153. 

23.  Where  an  action  of  trespass,  to  which  there  were  several 
pleas  in  bar  put  in.  was  referred  to  arbitrators,  and  they  award- 
ed damages  and  costs  to  the  plaintiff,  it  was  held,  that  the  award 
included  a  finding  of  all  the  issues  in  favor  of  the  plaintiff. 
Ibid. 

24.  An  award  to  be  valid  must  be  signed  by  all  the  arbitra- 
tors, unless  ii  is  otherwise  provided  in  the  terms  of  the  submis- 
sion.    Mackey  v.  Nieffl,  8  Jones,  214. 

25.  An  award  is  avoided  by  a  mistake  in  law  by  an  arbitra- 
tor, as  t<>  what  is  submitted  to  his  decision.  Walker  v.  Walker, 
1  Winst.,  259. 

2(5.  Where  an  arbitrator  does  not  make  his  award  upon  all 
the  matters  submitted  to  him,  the  award  is  entirely  void,  and 
the  defect  may  be  shown  as  a  defence  to  an  action  on  the  award. 
But  where  the  submission  is  of  all  matters  in  difference,  or  of 
all  disputes,  without  specifying  them,  the  arbitrator  may  make 
his  award  only  of  such  thing  as  ho  has  notice  of,  and  his  award 
will  be  good.  And  parol  evidence  is  admissible  to  show  what 
matters  are  within  the  terms  of  the  submission,  or  were  brought 
to  the  notice  t>i'  the  arbitrator.     Ibid. 


88  ARBITRATION  AND  AWARD— V.— ARREST, 

T.       REMEDY    ON    AWARDS. 

1.  An  agreement  between  the  parties  to   a  cause,  made  after 

the  issuing  but  before  the  return  of  the  writ,  referring  the  suit 
to  arbitration  and  making  the  submission  a  rale  of  court,  does 
not  authorize  the  entry  of  a  judgment  upon  an  award  filed  at 
the  return  day  of  the  writ.     Simpson  v.  McBee,  3  Dev„  531. 

2.  In  this  State  judgments  arc  entered  upon  awards  where,  by 
the  rule  f  the  common  law,  attachments  would  issue  for  the 
non-performance.     J  bid. 

3.  An  agreement  of  parties  out  of  court,  pending  a  .suit,  to 
submit  to  arbitration,  and  that  the  submission  and  award  should 
be  a  rule  of  court,  was  net  such  a.  rule,  as  by  the  principles  of 
the  common  law,  would  authorize  an  attachment  to  issue  for  its 
violation.     Ibid, 

4.  A  covenant  to  submit  a  matter  of  difference  to  arbitration 
will  bind  a  party  to  perform  the  award,  although  there  is  no 
express  stipulation  to  that  effect  ;  a, id.  in  an  action  upon  the 
covenant,  non-payment  of  the  sum  awarded  may  be  assigned 
as  a  breach.     Simpson  v.  McBee,  2  Dev.  and  Bat.,  22&. 

5.  An  award,  which  was  to  be  a  rule  of  court,  under  a  refer- 
ence by  order  of  court  to  arbitration,  may,  in  tins  State,  be 
enforced  by  entering  a  judgment  upon  it  for  the  debt  and  dama- 
ges awarded,  instead  of  proceeding  on  it  by  an  attachment  for 
contempt.      Cunningham  v.  Howell,  1  Ired.,  'J. 

li.  Wnena  submission  to  arbitration  is  by  bond  and  an  award 
is  made,  if  the  award  bo  for  the  payment  of  money  u,  suit  may 
be  brought  either  on  the  bond  or  on  the  award,  at  the  option  of 
the  partv  claiming  benefit  under  it.  Thompson  v.  Cliilds,  7 
Ired..  43':). 

6.  There  is  no  statutory  provision  in  this  State  upon  the  sub- 
ject of  awards ;  but  it  is  the  practice  to  enter  up  judgments 
upon  them,  in  those  eases  where,  by  the  common  law,  an  attach- 
ment would  have  been  granted  for  a  disobedience  of  a  rule  of 
court,  that  is,  when.' tlic  rule  lias  been  made  by  the  court  in  a 
cause  pending  therein.      Gibbs  v.  Berry,   13   Ired.,   388. 

7.  In  a  suit  upon  an  arbitration  bond,  flic  validity  of  the 
award  is  not  put  in  issue  by  1  lie  plea  of  "conditions  performer] 
and  not  broken,"     Kesler  v.  Kerns,  5  Jones.  191. 


ARREST. 

1.    An  arrest  is  an  actual  interfence  with  the  person,  or  a 
compulsory  restraint  of  it.     But  these  terms  are  not  identical], 


AEEEST.  89 

and  whore  an  officer,  having  a  warrant,  -went  to  the  defendant, 
and,  informing  him  of  the  fact,  said  to  him  "do  yon  submit?" 
and  he  answered;  "certainly,"  and  went  with  tin-  officer  before 
a  magistrate,  and  there  entered  into  a  recognizance  to  answer 
the  charge;  it  was  held,  to  be  such  an  arrest  as  amounted  to  an 
imprisonment  of  the  person.  Mead  v.  Young,  2  Dev.  and  Bat., 
521. 

2.  Where  a  person  went  voluntarily  heft  ire  a  magistrate,  and 
while  there  an  officer,  to  whom  a  warrant  against  him  for  a 
criminal  charge  was  directed,  said  to  him,  "there  is  a  warrant 
against  you;  do  yon  submit?"  and  he  replied  that  he  did,  and 
then  entered  into  a  recognizance  for  his  appearance  to  answer 
the  charge  specified  in  the  wan-rant,  it  was  held,  to  be  an  arrest 
amounting  to  an  imprisonment  of  the  person.  HasMns  v.  Youijg, 
2  J  lev.  and  Bat.,  527. 

?.  An  officer,  who  has  arrested  a  prisoner  under  a  state's  war- 
rant, has  a  right  to  tie  him,  if  he  believe  it  necessary  to  secure 
him,  and  of  this  necessity  he  is  the  sole  judge.  State  v.  Stolcup, 
2  Ired.,  50. 

4.  But  if  the  officer  be  guilty  of  a  gross  abase  of  this  author- 
ity, that  is,  if  he  do  not  act  honestly  according  to  his  sense  of 
right,  but  under  the  pretext  of  duty  gratifii  s  his  malice,  he 
is  liable  to  indictment,  and  the  jury  must  judge  of  his  motives 
from  the  facts  submitted  to  them.     Ibid. 

5.  In  such  a  case,  those  who  are  commanded  by  the  officer  to 
assist  him  and  do  assist  him  are  justified,  though  the  officer  him- 
self has  abused  bis  authority,  provided  they  acted  bonfiLfide  in 
obedience  to  his  command,  and  not  to  gratify  his  or  their  malice. 
IUd. 

G.  If  a  known  officer,  who  has  two  warrants  in  his  hands,  one 
legal  and  the  other  not,  declare  at  the  time  of  an  arrest  that  he 
makes  the  arrest  by  virtue  of  the  illegal  warrant,  yet  this  is 
not  a  false  imprisonment;  for  the  lawfulness  of  the  arrest  does 
not  depend  on  what  he  declares,  but  upon  the  sufficiency  of  the 
authority  which  he  then  lias.     State  v.  Kirby.,  2  Ired.,  201. 

7.  When  an  arrest  is  made  by  one  who  is  not  a  known  officer, 
he  is  bound  to  make  known,  at  the  time,  the  warrant  under 
which  he  makes  the  arrest.     Ibid. 

8.  A  warrant  from  a  magistrate  in  a  civil  case,  upon  which 
bail  is  not  required,  is  in  law  but  a  summons,  and  gives  no  au- 
thority for  mailing  an  arrest.     Ibid. 

;•.  When  a  sheriff  has  arrested  a  person  upon  mesne  process, 
and  taken  bail,  he  cannot  afterwards  arrest  him  upon  the  ground 
that  the  bail  is  insufficient.     State  v.  Brittain,  3  [red.,  17. 

10.  The  lawfulness  of  an  arrest  does  not  depend  upon  what 
an  officer  says,  but  upon  the  authority  he  has  to  make  the  arrest. 
Met  ds  v.  ( 'arver,  8  [red,,  298. 

11.  A  deputy  of  a  sheriff  is  so  far  !•<  and   by  prec.i  pts  in  the 


HO  ARREST.— AESON. 

hands  of  his  principal,  that  neither  he  nor  his  principal  is  liable 
to  an  action  for  false  imprisonment,  in  detaining  a  man  in 
prison,  arrested  on  one  process,  and  discharged  on  that,  when 
another  valid  process  is  in  the  hands  of  the  principal,  on  which 
he  was  subject  to  arrest  ;  and  this  is  the  rule,  although  neither 
the  deputy  nor  the  person  arrested  knew  that  the  sheriff  had 
such  process.     Ibid. 

12.  To  constitute  a  legal  arrest,  it  is  not  necessary  that  the 
officer  should  touch  the  person  of  the  individual,  against  whom 
the  precept  has  issued.  It  is  sufficient  if,  being  in  his  presence, 
he  tells  him  he  has  such  a  precept  against  him,  and  lie  says,  I 
submit  to  you)-  authority,  or  uses  language  expressive  of  such 
submission.  But  in  all  such  and  similar  cases,  it  is  a  question 
whether  there  was,  or  was  net,  an  intention  to  arrest,  and  so 
understood  by  the  parties,  and  this  is  a  matter  to  be  left  to  the 
jury,  and  cannot  be  decided  by  the  court  alone.  Jones  v.  Jones, 
13  Ired.,  448. 

13.  Where  the  question  is  whether  there  was  an  illegal  arrest 
by  an  officer,  it  must  be  determined  by  the  intention  and  under- 
standing of  the  parties  at  the  time  of  the  transaction.  Jones  v. 
Jones,  1  Jones,  491. 

14.  When  a  felony  has  been  committed,  an  officer,  or  even  a 
private  individual,  may  justify  the  arrest  of  a  suspected  person 
without  a  warrant,  for  the  purpose  of  taking  him  before  a  magis- 
trate to  be  examined,  provided  the  arrest  is  made  without 
malice  and  upon  probable  cause.  Brockway  v.  Crawford,  3 
Jones,  433. 

15.  What  is  an  arrest  is  a  matter  of  law  ;  but  whether  an 
arrest  was  made  in  a  particular  case  may  be  a  matter  of  fact, 
depending  on  intention,  and  as  such  must  be  submitted  to  the 
jury.     Journeys.  SJiarpe,  4  -hairs.  165. 

16.  The  principlie  of  the  common  law,  that  a  suitor,  while  go- 
ing to.  remaining  at,  or  returning  Inane  from  court,  is  exempted 
from  arrest,  is  in  force  in  North  Carolina.  Hammershold  v. 
Rose,  7  Jones,  629. 

See  (Constable — Of  the  power  and  authority  of  a  constable.) 
(Justices  of  the  peace — <  >f  justices'  warrants  in  criminal  pn  n  eed- 
ings,  1-2-3-4—7-9-15-16-17.)  (Indictment — Form  and  matters 
relating  thereto,  109.) 


ARSON. 

See    (Indictment — In    what    cases    an    indictment    will    lie, 
52-53-(;4-i;5-(;6-76-101-103-104-105-106.)  (Indictment-Form 


ARSON.— ASSAULT  AXD  BATTERY.  91 

and  matters  relating  thereto,  115.)     (Indictment — Of  the  trial, 
verdict  and  judgment,  ."s.)  (Indictment — Variance  between  the 

allegations  and  proof,  11.) 


ASSAULT  AND   BATTERY. 

1.  An  offer  to  strike,  by  one  person  rushing  upon  another,  will 

be  an  assault,  although  the  assailant  lie  not  near  enough  to  reach 
his  adversary,  if  the  distance  be  such  as  to  induce  a  man  of 
ordinary  firmness,  under  the  accompanying  circumstances,  to 
believe  that  he  will  instantly  receive  a  blow,  unless  he  strikes  in 
self-defence.     Stati  v.  Davis,  1  Ired.,  125. 

2.  It  is  not  sufficient  to<  constitute  an  assault,  that  a  man  of 
ordinary  firmness  should  believe  that  he  was  about  to  be  stricken; 
but  if  it  can  be  collected  from  the  circumstances  that,  notwith- 
standing appearances  to  the  contrary,  there  was  not  a  present 
purpose  to  do  injury,  there  is  no  assault;  and  the  jury  must 
judge  of  these  circumstances.     Slate  v.  Crow,  1  Ired.,  375. 

3.  Where  a  defendant  raised  a  whip  which  he  had  in  hand, 
and  shook  it  at  the  prosecutor,  being  within  striking  distance, 
but  said,  "were  you  not  an  old  man,  1  would  knock  you  down;" 
it  was  held,  that  this  did  not  indicate  a  present  purpose  to  strike, 
and  was  not  in  law  an  assault.     Iliid. 

4.  Where  A,  being  within  striking  distance^  raises  a  weapon 
for  the  purpose  of  striking  B,  and  at  the  same  time  declares  that 
if  B  wiil  perform  a  certain  act  he  will  not  strike  him,  and  B 
does  perform  the  req'sired  act.  in  consequence  of  which  no  blow- 
is  given,  yet  this  is  an  assault  in  A.  State  v.  Morgan,  3  Ired., 
186. 

5.  If  one  man  deliberately  kill  another  to  prevent  a  mere  tres- 
pass on  bis  property,  whether  that  trespass  could  or  could  not 
be  otherwise  prevented,  it  is  murder;  and  consequently  an 
assault  with  intent  to  kill  cannot  be  justified  on  the  ground 
that  it  was  necessary  to  prevent  a  trespass  on  property,  the  rule 
being  that  a  man  shall  not,  even  in  defence  of  his  person  or 
property,  except  in  extreme  cases,  endanger  human  life  or  inflict 
great  bodily  harm.     Ibid. 

.(>.  In  criminal  as  in  civil  cases,  if  there  lie  an  assault,  it  can- 
not be  justified  otherwise  than  by  showing  specially  all  the 
circumstances  which  renderthe  act  rightful;  and  the  sufficiency 
of  the  alleged  justification  is  a  matter  of  law.     Ibid. 

7.  It  is  a  good  defence  to  an  indictment  for  an  assault  and 
battery,  that  the  defendant  struck  the  prosecutor  to  prevent  his 
taking  away  the  defendant's  goods,  the  prosecutor  professing  to 


ASSAULT  AND  BATTERY.  92 

seize  them  as  constable  by  virtue  of  an  execution,  but  lie  not 
having  been  lawfully  appointed  a  constable.  And,  in  such  case, 
it  is  not  neeessary  that  the  defendant  should  have  made  an 
objection  to  the  prosecut*  r's  authority,  at  the  time  the  assault 
\v;is  committed.     States.  jBriqgs,  3  Ire.].,  357. 

8.  In  cases  of  assault  and  battery,  the  party  who  strikes 
another  must  be  guilty,  unless  he  be  justified  in  committing  it 
upon  the  ground  of  self-defence.  The  law  does  nut  justify  any 
assault  by  way  of  retaliation  or  -revenge  for  a  blow  previously 
received.     State  v.  Gib-ion.  In  [red.,  214. 

9.  Whether,  when  a  man  presents  a  pistol  at  another,  threaten- 
ing to  shoot,  and  the  pistol  is  not  loaded,  he  is  guilty  of  an 
assault  may  admit  of  some  question,  but  the  man  charged  clearly 
cannot  lie  excused,  unless  he  proves  that  it  was  not  loaded;  the 
State  not  being  bound  to  prove  that  it  was  loaded.  State  v. 
Clu  rry,  11  Ired.,  47."). 

10.  Insolence  from  a  free  person  of  color,  to  a  white  man,  wall 
excuse  a  battery,  in  the  same  manner  and  to  the  same  extent,  as 
in  the  case  of  a  slave.     State  v.  Joivers,  11  Ired.,  555. 

11.  //  seems  that,  though  an  assault  with  intent  to  murder 
was  formerly  considered  a  felony,  it  is  now  held  to  be  a  misde- 
meanor only;  and  although  it  may  be  a  high  misdemeanor,  it  is 
hot  subject  to  any  additional  punishment,  but  only  such  as,  in 
the  discretion  of  the  court,  may  be  inflicted  for  other  misde- 
meanors at  the  common  law.     State  v.  Boyden,  13  Ired.,  505. 

12.  Where  a  person  had  been  forbidden  a  house  by  the  owner, 
but  visits  it  for  the  purpose  of  having  music,  at  the  invitation 
of  a  servant,  at  an  hour  when  he  may  expect  to  meet  the 
owner,  and  instead  of  bringing  his  violin,  he  comes  armed  with 
:i  deadly  instrument,  and,  upon  being  ordered  out  by  the 
owner,  lie  asked  the  latter  to  go  with  him,  and  this  being  refused, 
he  stopped  at  the  door  and  made  an  assault  by  presenting  his 
pistol;  it  was  held,  that  if  death  had  ensued, the  defendant  would 
have  been  guilty  of  murder,  and,  therefore,  even  according  to 
the  old  authorities,  he  might  weil  be  convicted  of  an  assault 
with  intent,  to  murder.      Ibid. 

13.  One  may  recover  in  an  action  for  an  assau.lt  and  battery, 
although  he  agreed  to  fight  with  Ins  adversary;  for  such  agree- 
ment to  break  the  peace  being  .void,  the  maxim  volenti  nun  Jit 
injuria  does  not  apply.     BeU  v.  HansUy,  3  .Tones,  131. 

14.  A  husband  cannot  be  convicted  of  a  battery  on  his  wife 
unless  he  inflicts  a  permanent  injury  on  her  person,  or  uses  such' 

-excessive  violence  or  cruelty  as  indicates  malignity  or  vindictive* 
ness;  ami  it  makes  no  difference  that  the  husband  and  wife  are 
living  separate  by  agreement.     State  v.  Black,  1  Winst.,  206. 

15.  It  is  not  the  belief  simply  of  a  man  that  he  is  about  to 
.be  stricken,  which  will  justify  him  in  striking  first,  but  his  beliei 


ASSAULT  AND  BATTERY:— ASSIGNMENT.  9$ 

founded  on  reasonable  grounds  of  apprehension.  State  v. 
Bryson,  2  Winst.,  86. 

16.  One  who  seeks  a  fight,  or  provokes  another  to  strike  him, 
Cannot  justify  returning  the  blow  on  the  ground  of  self-defence. 
Ibid. 

See  (Indictment— In  what  eases  an  indictment  will  lie,  39- 
102.)  (Indictment — Variance  between  the  allegations  and  proof, 
7.)  (Indictment — Of  the  trial,  verdict  and  judgment.  3-57-61.) 
(Indictment — Pleas  of  former  acquittal  or  conviction,  5-15-16.) 
(Infants  and  infancy,  24.)  (Tenants  in  common,  14.)  (Evi- 
dence— In  criminal  proceedings  and  indictments,  55.) 


ASSIGNMENT. 

1.  Contingent  interests,  such  as  executory  devises,  «fcc.,  are 
assignable.  A  mere  possibility  cannot  be  transferred,  but  by  a 
possibility  is  meant  the  expectancy  of  an  heir  apparent,  or  of  one 
who  is  not  of  kin  to  a  living  man,  or  the  prospect  of  having  a 
legacy  left,  £ c.     Fortescue  v.  Satterthioaite,  1  Ired.,  566. 

2.  Where  a  plaintiff  in  a  petition  claims  to  be  an  assignee  by  a 
written  instrument,  whether  he  is  so  or  not  is  a  question  ot  law 
for  the  court,  not  of  fact  to  be  submitted  to  a  jury.  Clark  v. 
Edney,  6  Ired.,  50. 

3.  The  assignment  of  a  covenant  for  the  delivery  of  staves 
does  not,  at  law,  transfer  the  interest  in  the  covenant.  Cook  v. 
Arthur,  11  Ired,  401 

4.  Where  a  person  hired  a  slave  to  another,  and  one  of  the 
Stipulations  at  the  hiring  was  "that  the  negro  should  not  go 
by  water,"  and  the  person  who  hired  the  slave  permitted  others 
to  use  him,  and  by  them  he  was  employed  en  the  water,  in  con-- 
sequi  ace  of  which  he  lost  his  li,\;  it  was  held  that  tin  se  latter 
persons  were  not  answerable  in  damages  to  the  owner  of  the 
slave  for  his  loss,  because  the  stipulation  was  m  rely  personal 
and  could  not  pass  by  assignment.  Wilder  v.  ,11  Ired.. 
421. 

Seel  Assumpsit— When  it  will  or  will  not  lie,  21-52.)  (Bonds — 
Of  the  assignment  of  bends.)  (Chose  in  action,  3  5.)  (Eject- 
ment— Of  the  title  necessary  to  support  the  action,  5-22-71-72.) 
(Estoppel— By  deed,  15.)  (Guaranty,  10-11-16.)  (Husband 
and  wife — Husband's  interest  in  his  wife's  estate,  i  c,  11-17.) 
^Judgment — Of  the  assignment  of  judgments.)  (  Landlord  and. 
Tenant.  3. ) 


ASSUMPSIT.— J. 


94 


ASSUMPSIT. 


I.  When  the  action  will  or  *.vill  not 

lie. 
II.  Of  the  consideration. 


IK.  Pleadings, evidence  and  judgment). 

IV.  Defence  against  the  action. 


I.       WHEN    THE    ACTIOS   WILL    OK    WILL   NOT    LIE. 

1.  Assumpsit  will  not  lie  to  pay  a  sum  due  by  a  judgment. 
Tune  v.  WiUiams,  1  Hay,  18,  (25.) 

2.  Assumpsit  will  not  lie  on  a  sealed  instrument,  though uriati 
tested.  Ingram  v.  11,11.  Mar,  1.  S.  C,  1  Hay.,  193,  (222.) 
(Overruling  Colha.rd.ie  v.  Stanton,  .Mar.,  22,  7.) 

3.  Money  deposited  by  ctoe  person  to  1"'  paid  to  another,  upon 
a  contingency,  cannot  be  recovered  by  that  other,  but  must  be 
sued  for  bv  the  person  who  made  the  deposit.  Clary  v.  Allison. 
1  Play.  Ill,  (128.) 

4.  Assumpsit  for  the  use  and  occupation  of  a  house  will  lie 
upon  an  express  promise  to  pay;    bul   not  it  seems    upon  an 

d  promise,  because  debl  foi  r     ■  is  the  appropriate  action, 
i  Hay.,  485,  (559.)     S.  P.,  Ha\      •.  :  onf.  Rep., 

19,(159.)     ("Either  assumpsit  or  debt  ma;  brought,  fiev. 

1  '  de,  oh.  63,  sec.  2.) 

5.  Assumpsit  will  not  lie  where  a  party  has  a  remedy  on  a 

at  under  seal,  as  on  a  charter  party.     Davis  v.    Gibson, 
Conf.  Kep.    102,  (233.) 

6.  Where  the  owner  of  a  shv\  for  the  repay 
meht  of  a  sum  borrowed,  and  afti  wards  repaid  the  money  and 
took  back  the  slave,  held  thai  he  was  entitled  to  recover 
from  the  pledgee  in  assumpsit,  the  valui  services 

.  on  the  sum  borro       I.      Houten  v.  HoUiday,  2 
Murph.,  111.     S.  C,  1  Car.  L.  R,  87,  (11.) 

7.  Whenever  one  man  receives  money  belon  i  i  another, 
without  any  valuable  consideration  given,  the  law  implies  that 
the  person  receiving  it  promised  to  account  for  it  to  the  true 
owner;  and  for  the -breach  of  this  an  action  for 
money  had  and  received  lies. 

8.  One  having  paid  by  mistake  a  fifti  i  dollar 
hank  note,  cannot  maintain  assumpsil  for  forty-five  dollars,  as 
bank  notes  are  notSmoney,  and  e  ecanbe  i  plied  in  such 
a  case  to  pay  money.     Filqo  v.  Penny,  2  Murph.,  182. 

9.  Assumpsit  will  not  he  to  i  .  thing,  sold 
at  auction  on  a  credit,  until  afti  credit  has 
expired,  although  the  bidder  refuse     ■                          the  terras  of 

/   v.  fyiorris,  2  Murph.,  248.  S.  (_',.  1  Car..  L.  I', 
102,  (13.) 


ASSUMPSIT.  95 

10.  In  such  a  case  the  seller  must  wait  until  the  term  of  the 
credit  has  expired,  or  he  musl  sue  for  the  bn  i  ontract, 
in  not  complying  with  the  conditions  of  the  sale.     Ibid. 

11.  A  plaintiff  cannot  abandon  a  count  upon  a  special  agree- 
ment,   and  recover  upon    the    coi □    count,    on   the    ground 

that  the  written  evidence' if  the  special  agreement  has  been  lost. 
McFarlandjr.  Patterson,  2  Car.,  L.  R.,  618,(421.) 

12.  Where  W  was  indebted,  both  to  the  plaintiff  and  de  end- 
ant,  and  the  latter  authorized  an  agent  to  collect  bis  debt,  but 
not  to  bind  him  by  deed,  and  the  agent  purchased  from  W  a 
vessel,  on  account  of  his  principal,  whose  debt  was  to  go  in  part 
payment,  and  by  an  agreement  under  seal  the  balance  was  to 
be  paid  to  the  plaintiff;  afterwards  the  defendant  knowing  what 
his  agent  had  done,  approved  of  it,  and  received  the  vessel;  still 
the  plaintiff  was  held  not  to  be  able  to  maintain  assumpsit  for 
the  sum  agreed  to  be  paid  to  the  plaintiff  by  the  deed.  Diek- 
.ns  m  v.  Rodman,  X.  C.  Term  R.,  88,  (525.) 

13.  Where  two  persons  agreed  upon  the  price  to  be  paid  for  a 
pair  of  ho  ses,  but  the  sellersaid  that  he  could  no!  pari  with  them 
until  they  had  made  another  trii    i  i  I  and  that  when  he 

lined  that  the  purchaser  y  with  a 

third  person,  he  would  deliver  tl  I  driver  for 

the  purchaser ;  and  during  the  trip  i  horses  was  badly 

injured;  it  was  held,  that  the  sell,  i  -  recover  the  money 

from  the  third  person,  with  whom  ii  had  ited,  though 

h     i        -id  the  horses  and  di  the  contract 

of  sale  was  not  complete,  and  the  right  to  the  horses  had  not 
been  changed.     Branson  v.  Gales,  3  Murp.,  312. 

14.  Where  a  sheriff  having  an  execution  in  his  hands  had,  by 
the  consent  of  the  plaintiff  and  the  ecution, 

ted  with  a  purchaser  at  private  sale,  for  property  levied 
on  by  him   under  the  execution:   ,  that  the  contract 

enured  to  the  benefit  of  the  defendant  in  the  execution,  and 
that   he  might  sustain  assumpsil   on   it,  in  his  own  name,  the 
sheriff  having  arsted  as  hif  a 
y.  Lof'tin,  2  Hawks.  199. 

15.  If  one  receive  in  payment  or  exchange  counterfeit  bank 
not  1 1,  he  may  treat  them  as  a  nullity,  and  recover  back  the  amounl 
in  assumpsit,  although  the  par;  guilty  of  no 
fraud.     Hargrove  v.  Dusenbury,  .'  i  lawks,  326. 

16.  When  one  recives  counterfoil  hank  notes  in  exchange  fo 
a  good  one,  ho   may  treat  them   as  a  nullity,  and  recover  the 
amount  in  an  action  of  assun  i  n  ceived 
Anderson  v.  Hawkins,  3  Hawks.  568. 

17.  Assumpsit  will  not  lie  on  a  justice's  judgment ;  the  action 
should  be  debt.  Bain  v.  Hunt,  3  Hawks,  572.  S.  P.,  Hamilton 
v.   Wright,  4  Hawks,    2*3. 

18.  Assumpsit  will  not  lie  on  a  promise  to  pay  a  debt  when 


96  ASSUMPSIT.— I. 

the  same  debt  may  be  recovered  in  an  action  on  a  specialty;  bufi 
it  is  otherwise  when,  from  any  cause,  no  action  on  the  bond  can  be 
sustained.      Wilson  v.  Murphey,  3  Dev.,  352. 

19.  Where  land  was  demised  by  deed,  and  the  lessor  covenanted 
to  pay  for  certain  work  done  on  the  premises  by  the  lessee,  and, 
after  the  expiration  of  the  term,  the  lessor  promised  to  pay  the 
lessee-  an  ascertained  balance  for  the  work  done,  il  was  held,  that 
assumpsit  for  the  balance  could  not  be  sustained.     Ibid. 

20.  Money  received  by  the  cashier  of  a  bank,  on  deposit,  be- 
comes the  property  of  the  bank,  and  the  cashier  is  accountable 
to  the  bank  lor  if.  although  it  may  never  be  repaid  to  the  depos- 
itor.    State  Bank?.  Locke,  t  Dev.,  529. 

21.  Where  a  person  assigned  his  distributive  share  of  an  estate, 
and  afterwards  collected  and  used  the  amount  due  for  it,  assump- 
sit will  not  lie  against  him  by  the  assignee;  for  the  assignment 
did  not  transfer  at  law  any  title  to  the  distributive  share,  what- 
ever it  might  do  in  equity.     Smith  v.  Gray,  1  Dev.  and  Hat.,  42. 

22.  Where  an  agreement  in  writing  forthe  exchange  of  slaves 
was  made,  and  one  of  the  parties  afterwards  refused  to  complete 
the  contract,  it  was  held,  that  he  might  be  sued  in  action  of 
assumpsit,  to  recover  damages  for  a  breach  of  the  special  agree- 
ment,    Mobly  v.  Fossett,  3  Dev.  and  Bat,,  96. 

23.  Whether  upon  the  payment  of  the  price  of  slaves  partly 
in  counterfeit  bank  notes,  the  vendor  may  not  recover  the  amount 
of  the  notes  upon  an  express,  or  even  an  implied  promise  to 
make  them  good,  notwithstanding  a  receipt  and  acquittance 
under  seal,qwere:  and  of  an  action  founded  on  suci  promise  a  jus- 
tice has  jurisdiction.  It  is  a  promise  to  pay  money,  if  what  has 
been  received  as  a  bank  note,  be  not  what  it  purports,  and  nota 
guaranty  of  the  solvency  or  punctuality  of  the  makers  of  the 
note.     Lowe  v.  JVeatherly,  4  Dev.  and  Bat,  212. 

24.  Where  a  promise,  not  under  seal,  is  made  to  A  for  the  ben- 
efit of  B,  the  latter  may  briag  an  action  in  his  own  name,  but 
the  promise  must  be  laid  in  the  declaration  as  having  been 
made  to  li;  and  the  promise  actually  made  t%A  may  be  given 
in  evidence  to  support  the  declaration,  for  in  such  case  A.  is  con-- 
eidered  the  agent  of  B.  .but  where  it  is  apparent  that  A  was 
the  principal,  that  the  contract  was  for  his  benefit,  and  that  B 
was  only  to  receive  payment  of  the  stipulated  sum  for  and  in 
behalf  of  A,  then  A  alone  can  hiring  the  action.  Cox  v.  Skeen, 
2  [red.,   220 

2o.,  A  constable  gave  a  receipt  to  A  B,  as  agenl  for  C  D,  for  a, 
note  to  collect  or  reim-ii.  A  1!  transferred  the  receipt  to  E  Fby 
endorsement,  and  afterwards  collected  the  money  himself ;;  it 
was  held  that  E  F  could  not  recover  this  money  from  A  B,  in  an 
action  for  money  had  and  received  to  his  use.  for  the  money 
was  received  to  tie-  use  of  the  principal,  C  D,  nor  could  he 
recover  on  a  count  for  a  bill  of  exchange,  for   it  was  no  bill  ci 


ASSUMPSIT.— I.  97 

exchange;  nor  on  a  guaranty,  fin- he  had  used  no  diligence  in 
endeavoring  to  collect,  nor  given  notice  to  the  guarantor  of  a 
default  in  the  principal.     Eason  v  Dielcson,  -   lred.,  243. 

2ii.  Where  e  man  is  cheated  out  of  his  money,  though  it  is  at 
a  game  forbidden  by  law,  he  may  recover  back  in  an  action  of 
assumpsit  what  he  has  paid,  from  the  person  who  practised  the 
fraud  upon  him.      Webb  v.  Fuhhire,  '■'<  lred.,  485. 

27.  Where  the.  plaintiff  had  a  deed  of  trust  from  his  debtor 
for  certain  property,  and  at  a  sab-,  by  execution,  of  the  same 
property  declared  that  he,  objected  to  the  sale,  unless  the  pur- 
chaser would  agree  to  pay  his  debt,  and  he  had  a  private  con- 
versation with  the  person  who  afterwards  bid  off  the  property  ; 
it  was  held  that  there  was  no  evidence  of  a  promise  by  the  pur- 
chaser to  pay  the  plaintiff's  debt,  and  of  course,  that  the  action 
of  assumpsit  would  not  lie.     Jordan  v.  Wilson,  i  lred.,  322. 

2&  In  an  action  of  assumpsit  to  recover  back  tolls  which  the 
plaintiff  had  paid  to  the  defendants  upon  an  unlawful  demand 
of  them,  the  payment  of  the  tolls  cannot  be  said  to  have  been 
voluntary  ami  not  compulsory,  when  it  was  made  by  the  patty 
to  enable  him  to  obtain  a  passage  over  the  defendants  road  for 
the  United  States  Mai),  which  he  was  bound  to  carry,  and  to 
keep  his  property  from  being  taken  by  distress.  Newlaiul  v. 
Buncombe  Turnpike  Company,  4  lred.,  372. 

2'J.  Where  a  deputy  sheriff  received  money  on  am  execution 
in  his  hands,  and  failed  to  endorse  it  on  the  execution  or  give 
credit  for  it.  but  afterwards  collected  the  whole  amount,  without 
deducting  the  sum  so  paid,  and  subsequently  promisedjto  pay  the 
■defendant  in  the  execution,  if  such  mistake  had  been  made;  it 
■toa.R  held,  that  an  action  lay  against  the  deputy  upon  such  prom- 
ise, and  that  the  party  was  not  bound  t©  sue  the  sheriff  for  a 
breach  of  his  official  duty.     Tarldnton  v.  MasseU,  5  lred.,  359. 

30.  Where,  upon  a  contract  for  work  to  be  done,  the  workman 
agri  es  to  be  answerable  for  lost  time,  the  demand  for  this  lost 
time  is  in  the  nature  of  anliquidated  damages,  and  cannot  be 
set  off;  but  when  the  party  afterwards  acknowledges  in  a  letter 
how  much  he  owed  for  such  lost  time,  indebitatus  assumpsit  may 
Ik.  brought  for  it      Wheeler  v.  Dunn,  5  lred.  380. 

31.  In  every  declaratii  >n  for  money  paid  for  the  use  of  another, 
it  must  bi  laid  to  have  been  paid  at  his  request;  but  this  request 
may  be  express  or  implied,  and  it  is  always  implied  in  law, 
when  thi  payment  is  tly  recognized  by  the  person 
for  whom  it  is  made.      Taylor  v.  Gotten,  6  lred.,  69. 

32.  Where  a  debtor  had  two  agents;  one  of  whom  paid  the 

i  a  constable  who  had  it  for  collection,  and  the  other  to 
the  creditor  himself,  it  was  held,  that  the  debtor  might  recover 
back  from  the  creditor  the  amount  thus  erroneously  paid,  with- 
out showing  that  the  constable  had  paid  over  the  amount  to  the 
creditor.  Pool  v.  AUen,  7  lred.,  120. 
7 


98  ASSUMPSIT.— I. 

33.  The  action  of  assumpsit  is  a  liberal  action,  and  where,  by 
the  obligations  of  justice  and  equity,  the  defendant  ought  to  re- 
fund money  paid  to  him,  the  action  will  be  sustained;  but 
where  he  may  with  a  good  conscience  receive  the  money,  and 
there  was  no  fraud  or  unfair  practice  used  in  obtaining  it. 
though  it  was  money  he  could  not  have  recovered  at  law,  yet  it 
cannot  be  recovered  back  in  assumpsit.  Mitchell  v.  Walker,  8 
tred.,  243. 

34.  Where  money,  not  due,  has  been  paid  under  a  mistake  of 
Facts,  it  may  be  recovered  back  in  an  action  of  assumpsit,  but 
not  where  it  has  been  paid  under  a  mistake  of  law.  A<  well  v. 
March,  8  Ired.,  441. 

35.  If  A  be  indebted  to  B,  and  put  money  into  the  hands  of  G 
to  pay  B,  then  the  latter  may  sue  C  for  money  had  and  received 
to  his  use.     Draughan  v.  Bunting,  9  Ired.,  10. 

36.  Where  A  has  contracted  to  sell  land  to  B,  and  afterwards 
conveyed  it  to  a  trustee  to  be  sold  for  the  payment  of  debts,  and 
on  the  day  of  sale,  upon  B's  forbidding  the  sale;  il  was  agreed 
by  parol  between  A.  B  and  the  creditors  secun  d  by  the  deed  in 
trust,  that  the  land  should  be  sold,  and.  the  money  arising  from 
the  sale  should  be  subject,  in  the  hands  of  the  trustee,  to  the 
claim  of  the  rightful  owner  :  it  was  held  that  although  the  trus- 
tee had  received  the  money,  he  was  not  ii  umpsit  to  B, 
because  he  had  but  an  equitable  right.  Gaither  v.  Hetriek,  10 
Ired.,  114. 

37.  A  made  a  contract  with  B  that  he  would  place  in  the 
handsofa  constable  a  large  amount  of  promisor^  aoti  s  endorsed 
by  A  to  B,  take  the  constable's  receipt  then  tbi  and  deliver  it  to 
15,  upon  which  the  latter  was  to  deliver  to  A  cotton  yarn  to  the 
amount  of  the  notes  ;  A,  without  placing  the  notes  in  the  con- 
stable's hands,  fraudulently  procured  him  to  sign  a  receipt,  as  if 
notes  had  been  given  him  for  collection,  and  hand<  d  the  receipt 
to  B,  who.  thereupon,  delivered  the  cotton  yarn  according  to  the 
contract;  it  was  held  that  B  mighl  sue  \  either  in  assumpsit  <v 
in  case  in  tort,  a1  Ins  election.     Hoke   v.    i  ■  ruing,   10  Ired.,  263. 

38.  Where  A  sold  to  B  a  tract  of  land,  conveyed  by  a  deed 
containing  a  covenant  for  qiuet  enjoyment,  and  upon  discovery 
that  a  part  of  the  land  previously  belonged  to  B,  A  offered  to 
pay  B  the  value  of  tins  part  of  the  land,  so  as  to  avoid  a  suit  on 
the  covenant,  it  was  held  that  an  action  of  assumpsit  would  not 

lie  on  this  proposition,  because  B  had  uot  ai  :d  to  it.     Burns 

v.  AUen,  11   [red.,  25. 

39.  An  action  of  assumpsit  for  the  use  and  occupation  of  land 
will  not  lie  in  this  State,  unless  there  be  an  express  promise  to 
pay  rent.  Long  v.  Bonner,  Hire.!..  27.  (Such  an  action  will 
now  lie  -see  Rev.  Code,  ch.  63,  sec.  2.) 

•<>  Where  one,  in  settling  with  a  guardian,  paid  him  by  mis- 
Uiice  moretnan  was  due  to  him,  it  tie  was  entitled 


ASSUMPSIT.— 1  99 

-to  recover  it  Lack  from  the   guardian  individually,  in  an  action 
of  assumpsit.      Tow  v.  Elliott,  11  Ired.,  51. 

41.  Xo  action  at  law  can  lie  maintained  to  collect  the  assets  of 
a  deceased  man,  exoepl  by  his  personal  representative;  but 
where  A,  claiming  a  slave  as  distributee  of  B,  employs  C  to  sell 
him,  which  he  does  and  receives  the  price,  he  receives  it  for  the 
use  of  A,  and  cannot  dispute  his  title,  but  is  bound  to  account 
to  him  tor  it  in  an  action  of  assumpsit  for  money  had  and  re- 
ceived to 'his  use.     3IcNair  v.  McKay,  II  Ired.,  602. 

42.  Assumpsit  will  lie  lor  o-oods  sold  and  delivered,  when  the 
contract  is  reduced  to  writing,  as  well  as  an  action  on  the 
special  contract.  It'  the  sale  lie  for  cash,  assumpsit  may  be 
brought  forthwith ;  if  on  time,  then  at  the  expiration  of  the 
credit.  If  a  sale  be  on  time,  and  a  note  and  security  be  not 
grven  according  to  the  contract,  assumpsit  will  lie  at  the  end  of 
the  time,  or  the  party  may  sue  before,  declaring  specially  for  the 
omission  to  give  the  note  and  security.  McRcu  v.  Morrison,  13 
Ired.,  4(1 

43.  In  assumpsit  for  work  and  labor  done,  the  plaintifTcannot 
recover  any  thing  on  a  guan^um  meruit,  where  :i  special  contract 
is  proved,  and  it  appears  that  he  has,  against  the  consent  of  the 
defendant,  refused  to  perform  his  part  of  the  agreement.  Win- 
stead  v.  Reid,  Busb.,  76. 

14.  Where  A,  in  a  settlement  with  B,  was  allowed  a  credit  of 
a  certain  sum  due  from  B  to  C,   it  w  S  held  that  the  law  implied 
such  a  privity  of  contract  between  A  and  C,  as  entitled  th 
to  maintain  assumpsit   against  the    former  for    money  had  and 
received,     Carraway  v.   Cox,  Busb.,  173. 

45.  A  being  the  holder  of  a  bond,  made  by  B.  payable  to  (.'. 
and  passed  by  him  to  A  without  endorsement,  upon  th"  repre- 
sentation of  B  that  he  was  entitled  to  a  credil  tie  reon,  admitted 
the  credit,  took  a  new  note  for  the  residue,  ami  surrendered  the 
bond.  Afterwards  A  brought  assumpsit  against  B,  to  recover 
the  sum  allowed  as  a  credit,  on  the  ground  that  i*  was  not  due. 
and  had  been  allowed  by  mistake;  and  it  was  held  that  lie  could 
not  recover,. because  it' any  promise  of  B  was  to  he  implied  for 
its  re-payment,  it  was  a.  promise  to  the  legal  owner  of  the  bond. 
Dickson  v.  Johnson,  Bush.,  405. 

46.  A  confessed  a  judgment  to  !'.  before  a  justi  e  for  $40,  and 
afterwards  paid  a.  part  of  it,  which  B  promised  to  endorse  as  u 
credit,  hut  tailed  to  do  so.  and  caused  a  levy  to  be  made  on  the 
land  of  A,  had  it  returned  to  court,  upon  which  an  order  was 
made  and  the  land  sold  fur  the  whole  amount  of  the  judgment. 
But  beforethe  sale.  A  sued  B  to  recover  the  sum  paid,  which  he 
ought  to  have  endorsed  on  the  judgment ;  and  it  was  held  that 
the  action,  supposing  i1  could  be  maintained  a1  all.  was  prema- 
ture, as  there  could  be  no  cause  of  action  until  aftei  the  sale 
Shoemaker  v.  Hale,  Busb.,  411. 


100  ASSUMPSIT.— I. 

47.  Where  it  is  admitted  that  to  bind  a  defendant,  an  express 
promise  must  be  shown,  it  is  not  necessary  that  the  promise 
should  he  proved  in  so  many  words,  but  it  may  be  left  to  the 
jury,  from  words  previously  used,  whether  the  defendant  had 
not  authorised  others  to  assume  for  him.  Bute  v.  Shipman,  L 
Jones,  10. 

48.  To  recover  on  the  common  counts  in  assumpsit  for  mate- 
rials furnished,  and  for  work  and  labor  done,  it  must  be  shown 
that  the  articles  were  received  or  used  by  the  defendant,  or  was- 
in  some  way  beneiieial  to  him.     Byerl/y  v.Kephy,  1  Jones,  35. 

49.  Aii  actios  of  assumpsit  for  money  had  and  received  will : 
not  lie  in  favor  of  the  equitable  owner  of  a  chose  in  action  against 
the  legal  owner,  who  has  received  the  money  on  it.  Holiday  v. 
Stier, '  2  Jones,  389. 

50.  Assumpsit  will  lie  to  recover  back  money  paid  for  the 
purchase  of  a  forged  promissory  note.  White  v.  Green,  5'' 
Jones,  47. 

51.  Where  B  promised  to  procure  the  money  or  a  draft,  from 
a  merchant  who  had  bought  A's  tobacco,  and  to  credit  it  on  a 
bond  which  he,  B,  held  on  A,  and  negligently  failed  to  do  so ; 
it  tvas  held,  that  A  was  entitled  to  recover  in  assumpsit.  Wat- 
kins  v.  Jones,  5  Jones,  105. 

52.  Where  a  contract  for  timber,  made  with  a  railroad  com- 
pany, was  assigned  for  a  valuable  consideration,  and  afterwards 
the  company  increased  the  compensation  and,  upon  the  comple- 
tion of  the  contract,  paid  the  whole  amount  to  the  assignor,  it 
Was  held  that  the  assignee  was  entitled  to  sustain  assumpsit  for 
money  had  and  received  to  his  use  against  him,  as  well  for  the 
additional  allowance  as  fur  the  amount  of  the  original  contract 
price.      Winslow  v.  Elliott,  5  Jones,  111. 

53.  Where  one  agreed  to  purchase  a  lot  of  land  upon  condi- 
tion that  the  seller  would  deliver  him  a  deed  for  it,  by  two 
o'clock  of  a  certain  day,  and  paid  fifty  dollars  as  part  of  the  price, 
and  the  seller  not  having  it  ready  by  the  hour  designated,  the 
purchaser  said  ho  would  still  receive  it,  if  delivered  on  that  day, 
but  after  waiting  until  nearly  dark,  ho  said  he  had  waited  long 
enough  and  went  off,  and  refused  to  receive  it  when  tendered 
the  next  daj  :  it  was  held,  that  he  was  not  bound  to  receive  it  at 
that  time,  and  that  he  could  sustain  an  action  of  assumpsit,  to 
recover  back  the  money  he  had  paid.  Lewis  \ .  Brinkley,  5  Jones, 
295. 

54.  If  one  person  call  in  a  physician  to  see  another  who  is 
siek,  and  the  physician  knows  that  the  person,  who  called  him 
in,  was  only  acting  ;is  a.  messenger,  and  makes  no  objection  to 
attending  t he  sick  mas  on  that  account,  he  cannot  recover  for 
his  services  against  the  messenger.  Smith  v.  Biddicl;  5  Jones, 
342. 

55.  When  a  covenant  was  entered  into  between  two  partners, 


ASSUMPSIT.— I.  101 

\  and  B,  that  the  latter  should  take  the  goods  and  pay  all  the 
debts  of  the  firm,  and  should  repay  whatever  debts  of  the  firm  A 
sin  mill  pay,  and  afterwards,  upon  B's  death,  his  administrator 
agreed  with  A,  that  if  he  would  not  file  a  hill  against  him,  as 
administrator,  to  enjoin  the  payment  of  the  assets  to  other  debts 
than  those  of  the  firm,  he  would  confess  judgments  for  the  firm 
debts,  to  a  certain  amount,  and  pay  the  same,  which  he  failed  to 
do,  whereby  the  whole  fell  upon  A;  it  was  heed,  that  A  might 
sue  the  administrator,  in  his  ivdwidual  character,  in  assumpsit, 
upon  his  special  promise.     Ball  v.  Felton,  6  Jones,  202. 

5(1  Assumpsit  will  not  lie  f<  >r  g< »ods  si  >ld  and  delivered  upon  an 
alleged  implied  contract,  in  opposition  to  direct  evidence  that 
the  defendant  did  not  get  the  property  from  the  plaintiff,  and 
did  not  hold  under  him,  but  adversely  upon  a  claim  of  right  in 
himself  derived  from  another  person.  Lindsay  v.  McCullorJt,  6 
Jones,  326.     S.  P.   Wynne  v.  La/ham,  6  Jones,  329. 

57.  Money  paid  for  the  purchase  of  a  promissory  note,  which 
at  the  time  of  the  sale  had  been  paid  off  by  the  maker,  can  be 
recovered  back  in  an  action  for  money  had  and  received,  and  it 
makes  no  difference  whether  the  price  paid  for  the  note  was  al- 
together in  money,  or  partly  in  another  note  which  the  seller 
had  converted  into  money.     Page  v.  Einstein,  7  Jones,  147. 

58.  The  doctrine  which  allows  the  owner  of  a  personal  chat- 
tel, wrongfully  converted  into  money  by  a  sale,  to  waive  the 
tort  and  bring  assumpsit  for  money  had  and  received,  can  only 
apply  where  the  owner  has  a  right  to  the  money  at  the  time 
when  the  tort  is  committed.     Jones  Baird,'!  Jones,  152. 

_  59.  Where  A  sent  B  a  letter,  stating  that  if  he  and  C  wished  to 
hire  any  negroes  for  the  ensuing  year,  the  writer  would  "assign 
as  their  security,"  and  upon  the  faith  of  this  letter,  the  plaintiff 
hired  to  B  and  C  certain  slaves,  it  was  held,  that  A  was  liable  in 
assumpsit  for  refusing  to  sign  the  note  for  the  hire  of  the  slaves. 
and  that,  at  the  tune  of  the  expiration  of  the  credit,  the  measure 
of  the  damages  was  what  the  insolvency  of  B  and  C  had  left 
unpaid  of  the  price  agreed  to  be  paid  for  the  hire.  It  was  held 
furtin  /•,  that  no  demand  on  B  and  C,  or  on  A,  was  necessary  to 
be  shown  previously  to  iihe  bringing  of  the  action,  and  that  the 
plaintiff's  having- received  the  note  for  the  hire  from  B  and  C, 
after  A  had  refused  to  sign,  was  no  discharge  of  the  latter. 
Sleight  v.   Watson,  8  Jones,  10. 

fid.  A  person  who  presents  and  collects  an  order,  when  it  is 
endorsed  to  him,  collects  it  prima  facie  for  the  payee,  and  is 
liable  to  him  in  assumpsit  for  it.     Bund  v.  Hull,  8  Jones,  14. 

61.  Where  an  instrument  was  signed  and  sealed  by  one  of 
two  partners,  and  signed  only  by  the  other,  it  was  held  to  be  the 
deed  of  the  former  and  the 'simple  contract  only  of  the  other, 
:>nd  tli.it  thejatter  might  be  sued  alone  in  assumpsit  on.1he  instill- 


102  ASSUMPSIT.— I.-II. 

ment.     Davis  v.  Goldston,  8  Jones,  28.     (See  Rev.  Code,  ch.  31,. 
sec.  84.) 

62.  Where  the  plaintiff  had  contracted  to  serve  the  defendant 
ten  months  for  a  certain  sum,  and  before  the  expiration  of  the 
time  the  defendant  wrongfully  dismissed  him ;  it  was  held  that 
upon  the  common  count  for  work  and  labor,  he  could  recover  for 
the  time  he  had  actually  served ;  and  that  if  he  had  inserted  a 
count  upon  the  special  contract,  he  might  have  recovered  the 
whole  stipulated  sum.     Madden  v.  Porterjield,  8  Jones,  166. 

63.  Where  one* purchased  a  vessel  of  an  executor  and  agreed 
with  him  by  parol  to  pay,  besides  the  purchase  money  to  the 
executor,  all  the  debts  due  from  the  testator  on  account  of  the 
vessel ;  it  was  held,  that  a  person  to  whom  one  of  such  debts  was 
due,  who  was  not  present  at  the  agreement  and  who  was  not 
shown  to  have  discharged  the  prior  debt,  could  not  maintain 
assumpsit  against  the  purchaser  of  the  vessel.  Styron  v.  Bell, 
8  Jones,  222.  « 

64  Where  a  father  put  a  slave  into  the  possession  of  his  child 
with  an  intention  to  make  it  an  advancement,  but  afterwards 
changed  his  mind  and  took  it  back;  it  was  held,  that  the  law 
would  not  imply  a  promise  from  the  father  to  pay  his  child  for 
keeping,  feeding  and  clothing  the  slave.,  Hedrick  v.  Wagoner, 
8  Jones,  360. 

See  (Assumpsit — Pleadings,  Evidence  and  judgment,  6.)- 
(Assumpsit — Defence  against  the  action.)  (Contract — Construc- 
tion of  contracts  and  when  an  action  will  He.)  (Evidence — 
Parol  evidence,  wdten  admissible,  34),  (Justices  of  the  peace — 
Of  their  jurisdiction,  judgment  and  execution,  15-16.)  (Re- 
mainder— In  chattel  property,  18.) 

II.       OS   THE    CONSIDERATION. 

1.  A  consideration  is  necessary  to  support  every  assumpsit. 
Hence,  if  an  attorney  promise  his  client;  during  a  suit,  to  indem- 
nify him  against  the  consecpience  of  it,  the  promise  will  be 
invalid,  because  it  is  without  a  consideration.  Mitchell  v.  Bell, 
Conf.  Rep.  17,  (157.)     S.  C,  Tay.  61,  (44) 

2.  A  witness  in  a  suit  was  fined  for  a  failure  to  attend,  and  a 
judgment  nisi  entered  against  him.  The  party  summoning  him 
promised  that  if  he  would  attend  at  the  next  term,  the  forfeiture 
should  not  be  enforced.  In  an  action  for  the  breach  of  this 
promise,  it  was  held,  that  the  promise  was  without  consideration, 
as  it  was  only  to  induce  the  witness  to  do  that  which  it  was  his 
duty  to  do.     Sweany  v.  Hunter,  1  Murpk,  181. 

3.  Where  A  had  conveyed  to  B  a  tract  of  land  containing  221 
acres,  more  or  less,  and  it  was  afterwards  agreed  between  them 
that  the  land  should  be  surveyed,  and  if  it  were  found  to  contain 
more  than  221  acres,  B  should  gay  A  ten  dollars  per  acre  for  thfic 


ASSUMPSIT.— II.  103 

fexcess,  but  if  it  fell  short,  A  was  to  refund  to  B  at  the  same  rate 
for  the  deficiency,  upon  a  suit  by  A  for  an  excess,  it  was  held, 
that  these  were  mutual  promises,  of  which  one  was  a  considera- 
tion for  tin,'  other.     Howe  v.  CPMaVuey,  1  Murph.,  287. 

4.  The  consideration  which  is  necessary  to  support  a  promise 
must  he  a  benefit  to  the  party  promising,  or  lie  attended  with 
trouble  or  prejudice  to  the  other  party.  When,  therefore,  one 
person,  by  advice  honestly  given,  induces  another  to  purchase  a 
tract  of  land,  and  the  purchase  proving  to  bean  unfortunate 
one,  the  adviser  said  he  would  forgive  the  purchaser  a  debt  he 
uwed  him,  the  declaration  or  promise  creates  no  legal  obligation 
on  him  to  do  so.     Johnson  v.  Johnson,  3  Hawks.  556. 

5.  The  compromise  of  a  doubtful  right  is  a  sufficient  consider- 
ation for  a.  promise.      Truitt  v.  Chaplin,  4  Hawks,  178. 

6.  Where  one,  who  had  contracted  to  build  a  house  for  another, 
sold  his  interest  in  it  before  it  was  completed,  without  the  con- 
sent of  the  person  for  whom  it  was  building,  it  was  held,  that 
nothing  passed  and  that,  therefore,  there  was  no  consideration 
to  support  the  promise  to  pay,  made  by  the  purchaser.  Johnson 
v.  Carson,  1  Dev.,  80. 

7.  Although  courts  of  law  do  not  take  notice  of  bare  equities, 
yet  the  forbearance  to  enforce  one  is  a  sufficient  consideration  to 
support  an  action  of  assumpsit.     Nbblet  v.  Green,  2  Dev.,  517. 

8.  An  acknowledgment  of  a  balance  "due  at  the  end  of  three 
months "  for  the  delivery  of  certain  specified  articles,  is  not  a 
promissory  note,  because  it  contains  no  express  promise  to  pay, 
but  is  a  stated  account;  aud  a  partial  failure  of  the  considera- 
tion, as  a  mistake  in  the  quantity  of  articles  delivered,  may  be 
proved,  in  reduction  of  the  amount  admitted  on  its  face  to  be 
due.     Purtel  v.  Morehedd,  2  Dev.  and  Bat,  239. 

It.  A  promise  made  by  the  vendor  of  a  slave,  upou  the  slave's 
being  discovered  to  be  unsond,  either  to  cure  him  or  return  the 
the  price,  there  being  neither  a  warranty  of  soundness,  nor  a 
fraud  in  tin-  sale,  is  void  for  want  of  consideration;  because  there 
is  no  obligation  on  the  vendor  to  refund  the  money  or  to  cure 
the  slave;  neither  docs  any  thing  of  gain  to  him,  or  loss  to  the 
vendee,  result  from  the  promise.  Hatchell  v.  Odom,  2  Dev.  and 
Bat.,  302. 

10.  It  is  not  every  moral  obligation  that  is  sufficient  in  law 
to  raise  an  implied  promise,  or  support  an  express  one.  Such 
only  are  available  considerations,  which  would  originally  have 
been  good,  but  for  some  rule  of  policy,  as  a  promise  to  pay  a 
debt  barred  by  the  statute  of  limitations,  and  the  like.  But  a 
moral  obligation,  which  never  could  have  been  enforced,  is  not  a 
sufficient  consideration  to  support  an  express  promise.     Ibid. 

11.  (jiving  time  or  forbearing  to  sue  for  a  precedent  debt, 
where  th.>  party  has  a  remedy  in  some  court  either  at  law,  or  in 
equity,  is  a  good  consideration   to  support  a  promise  to  pay  the 


104  ASSUMPSIT.— II. 

debt.  And  where  the  defendant  said  to  the  plaintiff's  agent; 
"Tell  the  old  man"  (meaning*  the  plaintiff,)  "not  to  be  uneasy, 
but  to  wait  until  next  Thursday  week,  and  I  will  then  come  to 
his  house  and  compromise  or  settle  the  matter,  tor  I  do  nut  wish 
him  to  be  injured,"  it  is  evidence,  tending-  to  show  such  a  prom- 
ise, sufficient  to  be  left  to  the  jury.  Lowe  v.  Weatherly,  4  Dev. 
and  Bat.,  212. 

12.  Where  a  negro-,  belonging  to  A,  was  sold  by  B,  at  the  re- 
quest of  A's  wife,  in  the  life  time  of  her  husband,  and  the  price 
was  received  by  B,  who  after  A's  death  gave  his  promissory 
note  to  the  wife  for  the  amount  thus  received;  it  loas  held,  that 
there  was  no  consideration  for  the  note,  because  the  money  be- 
longed to  A's  representative.     Bryan  v.  Philpot,  3  Ired.,  4f>7. 

13.  Mutual  promises  constitute  a  good  consideration  for  a  con- 
tract.     Whitehead  v  Potter,  4  Ired..  257. 

14.  The  plaintiff  was  the  trustee  in  a  deed  of  trust  made  by 
A,  to  secure  a  debt  he  owed  to  B,  and  the  defendant  was  also  a 
creditor  of  A ;  under  these  circumstances,  a  promise  by  the  plain- 
tiff to  forbear  proceeding  under  the  deed  in  trust  would  not 
amount  to  a  good  consideration  at  law,  to  uphold  a  promise  of 
the  defendant  to  pay  to  the  plaintiff  the  debt  due  by  A  to  B,  so 
as  to  enable  the  plaintiff  to  declare  upon  it  in  his  own  name. 
Jordan  v  Wilson,  6  Ired.,  430. 

15.  Where  wrecked  goods  were  placed  under  the  care  of  the 
wreck-master  by  the  captain  of  the  vessel,  to  be  disposed  of 
according  to  law,  and  the  owner  afterwards,  and  before  a  sale, 
promised  the  wreck-master  that  if  he  would  deliver  up  the  goods 
to  him,  he  would  pay  him  his  commissions;  it  was  L<l<l  that 
there  was  a  sufficient  consideration  for.  the  promise.  Ftheridge 
v,   Thonqison,  7  Ired.,  127. 

1(>.  To  make  a  consideration  for  a  promise,  it  is  not  necessary 
that  the  person  making  the  promise  should  receive  or  expect  to 
receive  any  benefit;  it  being  sufficient  that  the  other  party 
should  be  subjected  to  a  loss  or  inconvenience.  Broun  v.  Ray, 
10  Ired,  72. 

17.  A  trust  or  confidence  reposed  by  reason  of  an  undertaking 
to  do  an  act,  though  the  undertaking  be  entirely  voluntary  and 
gratuitous,  is  a  sufficient  consideration  to  support  an  action  on 
the  promise.     Ibid. 

18.  If  a  contract,  to  perform  certain  stipulated  services  for  a 
certain  sum.  is  not  rescinded  by  the  mutual  consent  of  the  par- 
tics,  then  a  promise  to  pay  an  additional  sum  for  the  same  ser- 
vices is  without  consideration  and  cannot  be  enforced.  Fesp&r- 
7iioii  v.  Parker,  1<>  Ired.,  474. 

49.  A  promise  by  a  man,  that  if  B  would  marry  and  have  a 
child  by  his  wife,  he  would  pay  him  a  certain  sum,  is  a  valid 
contract  founded  upon  a  sufficient  consideration,  and  upon  the 
contingency  happening  B  is  entitled   to   recover   the  amount. 


ASSUMPSIT.— IL  105 

with  interest  from  the  time   the   child   was  born.      Garvin  v. 
Gromartie,  11  Ired.,  174. 

20.  The  mutual  promises  of  parties  to  a  special  contract  are 
sufficient  legal  considerations  for  either  to  maintain- assumpsit 
fora  breach  of  it  by  the  other.     Abrams  v.  Suttles,  Busb..  99. 

21.  A  loss  or  injury  to  the  plaintiff,  though  there  be  no  bene- 
fit to  the  defendant  is  a  sufficient  considerate  >n  to  support  a 
promise  by  the  latter.      Weatherly  v.  MiUer,  2  Jones,  166. 

22.  An  agreement  between  two  personsis  good,  when  founded 
upon  the  consideration  of  a  compromise  or  arbitration  of  a  right 
which  is  doubtful,  or  is  supposed  by  the  parties  to  be  doubtful, 
Mayo  v  Gardner,  4  Jones,  359. 

23.  Mutual  promises  may  constitute  a  sufficient  consideration 
to  support  a  contract.     Forney  v.  Shvpp,  4  .Tones,  527. 

24.  Inconvenience  or  loss  arising  to  a  party,  to  whom  a  promise 
is  made,  is  a  sufficient  consideration  for  the  promise  il'atkins 
v.  James,  5  Jones,  105. 

25.  An  agreement  4>y  which  one  of  the  parties  is  subjected  to 
trouble,  loss  or  inconvenience,  is  not  a  nudum  partum.  Findleif 
v.  Ray,  5  Jones,  125. 

2li.  Where  a  party  had  gold  and  delivered  an  article  of  a  stip- 
ulated quality,  an  agreement  afterwards,  without  any  further 
consideration,  to  warrant  it  to  be  of  a  better  quality,  was  hdd 
to  be  a  nudum  pactum.     McBugald  v.  McFadgin,  6  Jones,  89. 

27.  Where  the  obligor  and  obligee  in  a  bond,  conditioned  for 
the  conveyance  of  land,  agreed  to  rescind  the  contract,  and  in 
pursuance  of  such  agreement,  the  obligee  gave  up  the  bond,  and 
the  obligor  the  notes  taken  lor  the  price  of  the  land,  it  teas  held 
that  a  promise  afterwards  made  by  the  obligor,  to  pay  back  a 
sum  of  money  which  had  been  paid  towards  the  price  of  t he- 
land,  was  founded  upon  an  executed  or  past  consideration,  and 
waB,  therefore,  a  nudum  pactum.     Fulken.  Fulke,  7  Jones,  £97. 

28.  The  guaranty  of  a  promissory  note,  made  subsequent  to 
the  execution  of  the  note,  without  any  new  consideration,  is  a 
nudum  pactum,  and,  therefore,  void.  Gncr  v.  Jones,  7  Jones, 
581. 

2!t.  Where  the  owner  of  a  rice  mill,  who  had  a  turn  at  his  own 
mill,  agreed  to  let  a  customer  have  it,  but  there  was  no  particu- 
lar inducement  shown,  or  other  explanation  given;  it  teas  held 
that  there  was  no  consideration  for  the  agreement,  Ashe  v.  De 
Boasett,  8  Jones,  241. 

30.  The  existence  of  a  claim  in  equity  is  a  sufficient  consid- 
eration for  a  promise  thereon  to  pay  money,  or  other  thing,  and 
such  promise  may  be  enforced  in  an  action  at  law.  Hudson  v. 
Crifcfter,  >S  Jones,  485. 

See  (Bailment  9.)  (Contract — Of  the  sale-  of  personal  chat* 
.tels,  32.)     (Executors  and  Administrators — Of  their  liability  t"> 


106  ASSUMPSIT—  II.-IIL 

creditors,  &c,  63-64.)     (Husband  and  Wife — Of  the  liability  of 
a  wife  for  her  acts  during  coverture,  2.) 

III.       PLEADINGS,    EVIDENCE    AND    JCDG5IENT. 

1.  hi  an  action  of  assumpsit  against  two,  since  the  act  of 
1789,  where  the  jury  find  that  one  assumed  and  the  other  not, 
judgment  mav  be  rendered  in  favor  of  tin  plaintiff  against  the 
one  who  is  found  to  ha^e  assumed.  Jones  v.  Boss,  2  Car.,  L.  R, 
450,  (335.)      (See  Rev.  Code,  eh.  31,  see.  M,) 

2.  A  declaration  in  assumpsit  that  the  defendant  promised  to  pay 
for  a  certain  house  "  what  A,  B  and  C  should  say  it  was  \vorth," 
is  supported  by  evidence  that  he  promised,  in  writing,  to  pay 
"  what  A,  B  and  ( '  should  say."  Manning  v.  Saivyer,  1  Hawks,  37. 

3.  In  assumpsit  matter,  which  arises  after  the  plea  pleaded, 
may  be  give  in  evidence  under  the  general  issue,  in  mitigation 
of  damages;  and  if  pleaded  it  would  have  barred  the  action, 
the  plaintiff  will  bo  entitled  to  onlv  noimnal  damages.  Moore 
v.  McMairy,  1  Dev.,  319. 

4.  A  right  of  a<  tiorj  is  not  destroyed  by  an  agreement,  which 
only  gives  the  plaintiff  another  action  of  the  same  kind;  hence 
a  parol  agreement  to  refer  a  claim  to  arbitration  is  no  bar  to  an 
action  of  assumpsit  upon  the  original  claim.  Swaim  v.  Swaim, 
3  Dev.,  24. 

5.  A  count  in  assumpsit,  for  money  paid  to  B  by  A  at  the 
request  and  to  the  use  of  C,  is  supported  by  proof  of  the  sale  of 
a  bond  by  A  to  B,  and  that  B  credited  C  with  the  amount. 
Jones  v.  Cook,  3  Dev.  112. 

6.  Where  a  child,  upon  his  arrival  at  full  age,  continues  to- 
reside  with  and  serve  his  parent,  the  relation  subsisting  between 
the  parties  is,  in  an  action  to  recover  the  value  of  those  services, 
a  circumstance  from  which  the  jury  may  infer  that  they  were 
gratuitous.      iViltiams  v.  Barms,  3  Dev.,  348. 

7.  Where  a  merchant  renders  an  account  to  one  of  his  custo- 
mers, and  the  latter  keeps  it  without  making  objection  to  any  of 
the  items,  the  jury  may  infer  an  admission  of  its  correctness,  and 
a  promise  to   pay  the  balance.      Webb  V.  Chambers,  3  Ired.,  374. 

8.  In  assumpsit  for  goods  sold  and  delivered,  if  the  parties 
have  dealt  with  each  other  so  loosely  that  it  is  impossible  to 
show  the  precise  quantity  of  articles  delivered,  or  their  quality 
or  value,  it  is  proper  to  allow  jurors  to  act  on  testimony  which 
will  enable  them  to  approximate  the  true  amount  of  damages  to 
be  given.     Harrison  v.  Bridgi  rs,  I  .'ones,  77, 

9.  In  assumpsit  on  a.  special  contract;  for  the  price  of  a  slave, 
the  purchaser  cannot  give  in  evidence  that  the  slave  was  un- 
sound and  wothless.  His  remedy  is  an  action  for  a  deceit  or  on 
a  warranty  of  soundness.     Baines  v.  Drake,  •">  dunes,  153. 

10.  In  assumpsit  for  work  and  labor,  it  is  the  province  of  the- 


ASSUMPSIT.— III.-IV..— ATTACHMENT.— I.         107 

jury  to  estimate  the  value  of  the  plaintiff's  services,  according 
to  their  nature  and  extent  as  proved;  and  it  is  not  essential  for 
the  witnesses  to  state  the  value  in  money.  And  it  is  immaterial 
tor  a  witni  ss  to  say  how  much  the  services  were  worth  for  half 
an  hour,  during  which  lie  saw  the  plaintiff  at  work.  Madden  v. 
Porterjidd,  8  Jones-,  166. 

IV.       DEFENCE   AGAINST   THE    ACTIO:?. 

1.  In  assumpsit  by  a  woman  fur  a  breach  of  contract  to  marry 
her,  if  the  defendant  can  aver  and  prove  that  she  was  unchaste 
at  the  time  of  the  promise,  it  will  lie  a  complete  defence  against 
the  action.      Gaskill  v.  Dixon,  2  Hay.,  350,  (536i) 


ATTACHMENT. 


I.  When  an  attachment  shall  issue. 

II.  What  may  or  may  not  he  attached. 

III.  Of   the  return  of  an  attachment 

and  proceedings  thereon. 


VII.  Attachment     against    steamboats 
and  other  vessels,  under  the  act 
of  1854. 
VIII.   Attachment  on  account   of  an  in- 


IV.   Of  an  interpleader.  jury  to  person  or  property. 

V.  Of  a  garnishee-  and   proceedings  |       IX.  Of  judgment  and  execution  in  at- 

against  him  tachiaents,  and  their  effects. 

VI.  Of  the  replevy  bond. 

L        WHEN    AN*    ATTACHMENT    SHALL  ISSUE. 

1.  Although  the  defendant  is  not  about  to  remove,  if  the 
plaintiff  suspect  it,  so  that  he  can  conscientiously  swear  that  the 
defendant  is  about  to  do  so,  he  may  take  the  oath,  and  the 
justice  must  issue4  the  attachment.  If  the  defendant  sustain 
damage  thereby,  he  may  sue  on  the  attachment  bond,  or,  if  the 
oath  be  maliciously  false,  he  may  indict  for  perjury,  but  the  pro- 
ceedings must  go  on.     &Neal  v.  Oioens,  1  Hay.,  365,  (419.) 

2.  An  attachment  bond  unattested  is  goed.     Ibid. 

3.  The  attachment  law  does  not  require  the  plaintiff  to  swear 
positively  to  the  amount  of  his  debt;  and  it  was  therefore  held 
good  when  the  plaintiff  swore,  that  he  had  good  reasons  to 
believe  that  the  defendant  and  his  connections  had  endamaged 
him  to  the  amount  of,  &c,  I'mnll  v.  Hampton,  Conf.  Rep.,  86, 
(218.)    S.  P.,  Bickerstaf  v.  DMnger,  Ibid,  299,  (388.) 

4.  A  creditor,  who  is  a  citizen  of  this  State,  may  attach  the 
property  of  his  debtor  found  here,  though  such  debtor  is  a  citi- 
zen of.  New  York  and,  by  an  insolvent  law  of  that  State,  his. 


108  ATTACHMENT.— I.-II. 

property  has  been  assigned  for  the  general  benefit  of  bis  cred- 
itors.    BizzeU  v._  Bedient,  2  Car.  L.  R.,  .254,  (233.) 

5.  A  non-resident  creditor  cannot  attach  the  property  of  his 
debtor  in  this  State,  when  the  latter  is  also  a  non-resident  of  the 
.State,  and  has  not  absconded  nor  removed,  to  avoid  the  ordinary 
process  of  the  law.     BrogMU  v.  Wellborn,  4  Dev.,  511. 

6.  An  original  attachment  cannot  issue  in  this  State  for  any 
cause  of  actios  arising  from  tort,  but  only  for  those  founded  on 
■contract.  Minga  v.  ZoUicoffer.  1  Ired.,  178.  (May  now  issue 
for  torts  to  person  or  property,  under  certain  restrictions.  See 
Rev.  Code,  oli.  7.  sec.  16.) 

7.  A  non. resident  creditor  cannot,  under  our  attachment  law, 
attach  the  property  of  his  debtor  in  this  State,  when  the  latter 
has  not  absconded  nor  removed  to  avoid  the  ordinary  process  of 
law.      Tat/lor  v.  Buckle//,  5  Ired.,  384. 

8.  Under  the  attachment  law.  a  non-resident  creditor  may 
attach  the  property  of  his  debtor  residing  in  this  State,  who  has 
absconded,  or  so  conceals  himself,  that  the  ordinary  process  of 
law  cannot  be  served  on  him.  McCready  v.  Kline,  6  Ired, 
245. 

9.  A  carpenter  by  trade  enlisted  in  the  army  during  the  war 
with  Mexico,  and  during  "his  absence  at  the  seat  of  war.  B  sued 
•out  an  attachment,  levied  on  the  carpenter's  tools  which  had 
been  left  in  the  possession  of  a  friend,  and  had  thorn  sold  for  the 
carpenter's  debt;  and  it  was  held  that,  whether  during  a  vcfl/fi/nr 
tary  absence  of  the  carpenter  the  tools  of  his  trade  would  or 
would  not  have  been  liable  to  seizure  under  execution,  yet  B 
was  liable  for  a  wrongful  suing  out  of  the  attachment,  the  car- 
penter not  having  fraudulently  or  privately  absconded,  within 
the  meaning  of  the  law  allowing  attachments,  and  there  being 
no  probable  cause  to  suppose  that  he  had.  Abramsv.  Pender, 
Busk,  260. 

10.  An  attachment  under  the  act,  Rev.  Code,  ch.  7,  sec.  1, 
may  be  issued  by  a  clerk  of  the  county  or  superior  court.  Cher- 
n/  v.  Kelson,  7  Jones,  141. 

II.       WHAT    MAY  -OR   MAY   NOT    BE    ATTACHED. 

1.  Money  in  the  hands  of  a  sheriff  or  clerk  of  a  county  court, 
cannot  1m/ attached.  Alston  v.  Clay,  2  Hay.,  171,  (360*).  S.  P. 
Overton  v.  Hill,  1  Murph.,  47. 

2.  A  surplus  of  money  in  the  hands  of  a  sheriff,  remaining 
after  satisfying  the  executions  which  he  has,  may  lie  attached 
by  the  creditors  of  the.  defendant  in  the  execution.  Orr  v. 
McBride,  2  Car.   S.  R.,  257,  (236.) 

3.  Where  a  trustee,  under  a  deed  in  trust  made  to  secure  cer- 
tain creditors,  had  sold  the  property  conveyed,  ami  after  the 
payment  in  full  of  the  creditors  secured,  held  a  surplus  in  hands 


ATTACHMENT.— II.  1(W 

consisting  of  notes,  it  was  held,  that  these  notes,  though  not  yet 
due.  were  liable  to  be  attached,  and  the  money  due  on  them 
condemned  to  the  use  of  the  attaching  creditor,  in  a  proceeding 
in  which  the  trustee  and  the  maker  of  the  notes  were  summoned 
as  garnishees.     Pmce  v.  Junes,  3  Murph,,  256. 

4.  Property  in  the  hands  of  an  administrator,  which  will  be- 
long to  the  debtor  as  one  of  the  next  of  kin,  after  settlement  of 
the  administrator's  accounts,  cannot  be  attached.  Elliot  v.  New- 
bi/,  2  Haws,  21.  (May  now  be  attached  in  equity.  Sec  Rev. 
Code.  ch.  7,  sec.  20.) 

5.  Slaves  held  by  v.:  trustee,  in  trust  to  be  divided  among  the 
children  of  A,  who  may  be  now  living,  and  those  who  represent 
any  deceased  child,  in  the  proportion,  and  alter  the  same  man- 
ner as  if  they  were  claiming  the  said  shares  as  the  next  of  kin  of 
A,  are  not  liable  to  an  attachment  aft  the  instance  of  a  creditor 
of  one  of  the  cestui  </«<■  trusts.     Gil! is  v.  McKay,  4  Dev.  172. 

(i.  No  attachment  can  be  levied  upon  property  held  by,  or 
debts  due  to,  absconding  debtors,  as  trustees  for  others.  Simp- 
son v.  ffarri/,  1  Dev.  and  Bat.,  202. 

7.  Negotiable  securities  may  be  attached  as  "money  due  to 
the  defendant  in  the  attachment."  Skinner  v.  3Ioure,  2  Dev.  and 
Bat,  138. 

8.  Unliquidated  damages,  such  as  damages,  which  are  in  their 
nature  uncertain,  for  the  breach  of  an  agreement,  cannot  lie 
made  fhe  subject  of  attachment  Tinder  the  attachment  law. 
Hugij  v.  Booth,  2'Ired.,  2$2.     (See  Kev.  Code,  ch.  7,  sec.  7.) 

9.  Money  in  the  hands  of  a  clerk  of  a  court,  by  virtue  of  his 
office,  cannot  be  attached!     Hunt  v  Stephens,  3  Ired.,  365. 

10.  No  specific  tangible  property  can  be  attached,  which  can- 
not be  sold  under  the  execution  after  judgment  obtained. 
Hence,  where  an  estate  is  vested  in  trustees,  and  the  purposes 
of  the  trust  require  that  the  legal  estate  shall  remain  in  them, 
the  property  so  conveyed  cannot  be  sold  under  execution,  so  as 
thereby  to  divest  the  trustees  of  their  estate,  or  any  part  of  it. 
Davis  v.  Garrett,  '.'<  Ired.,  45«j. 

11.  Where  money  has  been  received  by  a  trustee  under  a  deed 
intrust,  fortlie  purpose  of  being  divided  among  several  persons, 
and  yet  remains  in  his  hands'for  the  purpose  of  being  distributed 
pro  rata,  there  not  being  enough  to  satisfy  all  the  purposes  of 
the  trust,  the  distributive  share,.-  to  which  one  of  the  cestui  erne 
trusts  will  be  so  entitled,  is  not  the  subject  of  attachment  at  the 
suit  of  a  creditor;  under  our  attachment  law.  Cqffield  v.  Gollins, 
4  Ired.,  486.  (It  may  now  be  attached  in  equity.  See  Eev 
Code.  eh.  7.  sec.  20.)  ' 

12.  Whi-ie  a  note'  payable  in  specific  articles  has  been  given 
by  A  to  15.  then  assigned  to  the  defendant  in  the  attachment, 
and  afterwards  by  him  transferred  to  C,  who  is  summoned  as 
garnishee,  this  note  is  not  the  subject  of  attachment  in  the  hands 


110  ATTACHMENT.— II. 

of  C,  and  he  is  not  bound  on  his  garnishment  to  answer  for  its 
value.     Beaver  v.  Keith,  5  [red.,  374. 

13.  In  no  ease,  when  the  claim  of  the  defendant  in  the  attach- 
ment, against  the  garnishee,  rests  in  unliquidated  damages,  can 
the  demand  be  attached,     lliid. 

14.  A  legacy  in  the  hands  of  an  executor,  due  to  a  married 
woman,  cannot  be  attached  for  a  debt  of  the  husband;  for  it  is 
not  his  until  he  reduces  it  into  possession.  Arringwh  v.  Screws, 
9  Ired.,  42. 

15.  The  process  of  attachment  operates  only  on  such  interests 
of  the  debtor  as  exist  at  the  time  it  is  served,  and  not  on  such 
as  may  afterwards  arise.     II nil. 

12.  Where  A  conveys  property  by  a  deed  of  trust  for  the 
payment  of  debts,  and  the  debts  are  unsatisfied,  the  property  is 
not  subject  to  an  attachment  against  A.  Andemon  v.  Doak,  10 
Ired.,  295. 

17.  The  effects  of  a  firm  are  not  subject  to  attachment  for  the 
separate  debt  of  one  of  the  partners.  Cook  v.  Arthur,  11  Ired., 
407. 

18.  A  carpenter's  tools  may  be  seized,  condemned  and  sold, 
under  an  original  attachment.  Martindah  v.  Whitehead,  1 
Jones,  64. 

1!).  Money  in  the  hands  of  a  clerk  and  master,  arising  from 
land  sold  for  partition,  may.  after  the  share  of  each  party  has 
been  ascertained  and  an  order  mad.'  for  distribution,  be  attached 
for  a  debt  due  by  one  of  the  tenants  in  common,  and  the  clerk 
and  master  may  be  summoned  as  a  garnishee  in  relation  thereto! 
Gaither  v.  BaUeio,  4  Jones,  488. 

See  (Partnership — What  constitutes  a  partnership,  &c,  10.) 

in.       OF   THE    RETURX    OF     AN    ATTACHMENT    AND     PROCEEDINGS     THEREON. 

1.  If  the  debt  be  due  by  bonds  which  are  specified  in  the  affi- 
davit, none  but  those  so  specified  shall  be  given  in  evidence;  if 

they  be  not  so  specified,  the   declarat nay  be  of  any  bonds 

within  the  amount  laid  in  the  attachment  as  being  due.     Hawks 
v.  Fabre,  1  Hay..  159,(345.) 

2.  Where  an  attachment  was  executed  and  returned  to  a 
court  on  the  same  day  on  which  it  was  issued,  the  return  is 
irregular,  but  is  helped  by  the  statutes  of  jeofails,  after  verdict 
or  judgment  by  default.  Powell  v.  Hampton,  Conf.  Rep.  SO. 
(21  s.) 

3.  If  an  officer  executing  an  attachment  returns,  "executed 
and  returned,"  without  specifying  on  what  he  has  levied,  the 
return  is  informal,  but  is  cured  by  the  same  statutes.     Ibid. 

4.  If  a  plaintiff  in  attachment  fail  to  give  bond  or  file  an 
affidavit,  it  should  be  pleaded  in  abatement,  and  cannot  be  taken 


ATTACHMENT.— III.  Ill 

idvantage  of  on  a  writ  of  error.     Ibid.     S.  P.,  Bickerstaff  v 
Dellinger,  Ibid,  299,  (388.) 

5.  The  attachment  laws  arc  to  be  construed  strictly,  and  the 
plain  tiff  must  perform  all  the  conditions  required,  to  entitle  him 
to  the  benefit  of  them;  hence,  he  must  not  only  give  bond  and 
make  affidavit,  but  see  that  they  are  returned.  But  where  this 
objection  was  pleaded,  and  it  appeared  to  the  court  that  the 
plaintiff  had  made  affidavit  ami  given  lend,  which  the  justice 
had  neglected  to  return,  the  plaintiff  was  permitted  to  hie  them 
nunc  pro  tunc.     State  B, ml;  v.  Uinton,  1  Dev.  397. 

6.  in  an  original  attachment,  any  defect  in  the  affidavit  is 
waived  by  appearance  and  pleading  in  chief.  Qarman  v.  Bar- 
riiKjt  r,  2  1  >ev.  and  Bat.,  502. 

7.  In  an  attachment,  the  defendant,  by  accepting  a  declaration 
and  pleading  to  it,  waives  all  objection  to  detects  in  the  process. 
Price  v.  Sharp,  2  Ired.,  417. 

8.  Where  a  defendant  in  an  attachment  is  brought  before! 
justice,  not  by  a  levy  mi  his  property.  Inn  ning  a  ga:r 
nishee,  no  advertisement  or  notice  in  writing  is  required  Par- 
feerv.  Gilreath,  7  [red,  400. 

9.  An  attachment  issued  by  a  justice  out  of  court,  and  not 
made  returnable  within  thirty  da  vs.  is  void.  Houston  v.  Porter, 
10  lred.,  17-1. 

lit.  An  attachment,  like  a  warrant,  need  no1  contain  any  cer- 
tain day  of  return,  and  conforms  to  the  statute,  if  made  return- 
able "within  thirty  days"  from  its  date.  Matt  v.  Simpson,  13 
Ired.,  7-'. 

11.  After  a  defendant  in  an  attachment  has  appeared,  reple- 
vied the  property  attached  ami  pleaded  in  chief  it  is  two  late 
for  him  to  object  to  errors  in  the  form  of  the  attachment.  Sy- 
mons  v.  North  .  n,  4  Jones,  211. 

12.  Attachments  tin-  debt,  issued  without  bond  and  affidavit, 
taken  ami  returned  according  to  the  si  missed 
on*  motion,  but  the  objection  musl  I  taken  by  a  plea  in  abate- 
ment.    "Evans  v.  Andrews,  7  Jones,  ill. 

1:5.  A  motion  to  quash  an  atta  tverred 

in  the  lace  nf  the  proceeding  thai  the  plaintiff  is  a  resident  of 
this  Stat.-,  must  be  supported  by  an  affidavit  asserting  that  tact. 

14.  In  an  attachment  for  deft,  objections  to  the  sufficiency  of 
the  affidavit  or  bond  can  only  !"•  taken  by  a  plea  in  abatement. 
Cherry  v.  Nelson,  7  denies.  141. 

15.  The'  plaintiff  in  a  junior  attachment  cannot  be  allowed  to 
intervene  in  an  attachment  of  a  prior  date,  for  the  purpose  of 
congesting  the  existence  and  validity  of  tin  debt  therein  sued 
for.     Bank  of  FayettevUU  v.  Sp  irling,  7  Jom 

See  Execution — Lien  and  priority  of  executions,  -15.)  (Juris- 
diction— Of  the  county  and  superior  court,  41.)     (Process.  12.; 


112  ATTACHMENT.— IV. 

IV.      OF    AN   INTERPLEADER. 

1.  A  party  may  interplead  to  an  attachment  at  any  time 
before  final  judgment  ;  and  to  enable  him  to  do  so,  it  is  regular 
to  set  aside  a  default  which  has  been  entered  up  two  terms. 
Dodson  v.  Bush,  1  Car.  Law  Repos.,  23fi,  (18.) 

2.  The  word  "  appeal,"  in  the  9tb  section  of  the  act  of  1794, 
in  relation  to  an  interpleader  before  a  justice,  is  not  used  in  its 
technical  sense,  and  it  is  not  therefore  necessary  or  regular  for  a 
magistrate  to  pass  upon  a  claim  of  a  third  person  to  property 
attached,  before  such  person  can  carry  his  case  to  the  county 
court.  Simpson  v.  Harry,  1  Dev.  and  Bat,,  202,  (see  liev.  Code, 
ch  7,  sec.  18.) 

3.  The  claim  of  an  interpleader  to  property  attached,  must  be 
a  legal  claim  ;  a  mere  equitable  one  will  not  entitle  tin;  inter- 
pleader to  the  property  attached.     Ibid. 

^4.  No  claim  can  he  interposed  by  a  third  person  to  a  dell 
attached  in  the  hands  of  a  garnishee,  as  nothing  but  tangible 
property  comes  within  the  words  or  spirit  of  the  law  allowing 
an  interplea.     Ibid. 

5.  Creditors  of  garnishees  have  no  legal  right  to  interpose,  for 
the  purpose  of  preventing  such  garnishees  from  confessing  them- 
selves indebted  to  the  absconding  debtor.  Such  confession  will 
not  affect  their  claim  against  the  garnishee.  But  where  specific 
property  is  levied  upon  as  the  property  of  an  absconding  debtor, 
claimants  have  a  right  to  interpose  for  the  purpose  of  protecting 
their  present  enjoyment  of  it,  and  to  prevent  any  injury  that 
might  attend  its  removal.     Ibid* 

(3.  The  owner  of  property  attached  is  not  obliged  to  inter- 
plead, though  he  may  do  so  for  the  sake  of  convenience.  A  sale 
under  an  execution,  issuing  upon  a  judgment  on  an  attachment, 
only  passes  the  right  of  the  defendant  in  attachment.  Darin  v. 
Gmn U,  3  lied.,  469. 

7.  In  a  proceeding  by  attachment,  when  an  interplea  has 
been  Hied,  the  only  issue  submitted  to  the  jury  is  as  to  the  title 
to  the  property  levied  on  ;  the  jury  having  no  right  to  assess  the 
value  of  the  property,  or  damages  for  its  detention  or  dot  ruc- 
tion.    .'■:'<■  L i  an  v.  Douglas,  6  I  red.,  233. 

8.  After  property  is  levied  on  under  an  attachment,  it  is,  until 
replevied,  in  the  hands  of  an  officer,  in  the  custody  of  the  law. 
When  the  issue  as  to  the  title  is  found  in  favor  of  the  plaintiff 
in  the  interplea,  the  court,  on  motion,  will  make  an  order  on  the 
officer  for  its  delivery,  a  disobedience  of  which  on  his  part  would 
be  punishable  as  a  contempt.     Ibid, 

'.).  If  the  officer  has  voluntarily  parted  with  the  propertjvor 
by*his  negligence  suffered  it  to  be  destroyed  or  injured,  he  is 
answerable  in  damages  to  the.  owner.     Ibid. 

10.   A  party  claiming  title  to  property  seized  under  an  attach- 


ATTACHMENT— IV.-V,  113 

incut,  may  interplead  at  any  time  before  final  judgment  in  the 
attachment.  Evans  v.  Goveftior's  Creek  Transportation  and 
Ulining  Company,  5  Jones,  331. 

V.       OF    A    GARNISHEE    AND    PROCEEDINGS    AGAINST    HIM. 

1.  Although  the  sheriff  has  returned  that  a  garnishee  cannot 
be  found,  it'  he  come  into  court  about  other  business,  he  shall 
answer  to  his  garnishment     Salmon  v.  Smoof,  Mar.,  72,  (73.) 

i.  A  garnishee  may,  after  judgment  againsl  the  principal,  be 
examined  upon  points  left  unfinished  on  his  first  examination. 
MaUett  v.  London,  ±  Hay.,  158,  (341.) 

3.  An  administrator  is  not  liable  to  answer  as  garnishee, 
Whether  hiS  intestate  was  indebted  to  the  defendant  in  the  at- 
tachment.     Welch  v.  Gwley,  2  Hay.,  334,  (510.) 

4.  A  garnishee  cannot  be  asked  v  hether  he  does  not  owe  the 
defendant  in  the  attachment  as  administrator,  but  he  inay.be 
asked  whether  he  dors  not  owe  as  heir  or  devisee.  Gee  v.  WcSr- 
umJc,  2  Hay..  354,  (544.) 

5.  A  garnishee  cannot  be  .asked  whether  he  lias  paid  a  bond 
held  against  him  by  the  defendant  in  the  attachment,  and  which 
is  move  than  twenty  years  old.  Gee  v.  Warwick,  2  Hay.  358, 
(549)  and  398,  (599.)  ' 

6.  A  garnishnee  may  avail  himself  of  any  defence,  which  he 
could  make,  were  he  sued  by  the  defendant  in  the  attachment. 
Russd  v.  Hintm,  1  Kurph.,  4ii.s. 

7.  Where  A,  whe  was  summoned  as  a  garnishee  in  a  suit 
between  B  and  C,  had  been  induced  by  B  to  promise  to  pay  C, 
on  a  certain  day.  a  sum  of  money,  for  which  he  was  not  legally 
bound  hecalase  of  the  contract's  being  usurious,  B  impressing  A 
with  tin  belief  that  he  should  not  be  summoned  as  a  garnishee 
in  any  suit  of  15s  against  C,  it  ivas  held,  that  the  promise  having 
been  made,  although  A  paid  the  money  to  C,  after  he  was  sum- 
moned as  garnishee,  he  should  not  be  held  responsible  for  it  on 
his  garnishment  to  B.     Ibid. 

8.  [n  a  proceeding  on  a  garnishment  under  the  attachment 
law,  it  is  unnecessary  for  the  plaintiff  to  reply  on  oath  to  the 
answer  of  the  garnishee,  when-  the  garnishment  admits  the 
possession  of  property  received  from  the  defendant,  but  sets  up 
a  distinct  title  to  it.  '  Cowles  v.  Oaks.  3  Dev.,  96. 

1).  Where  attachments  were  issued  and  a  garnishee  summoned 
at  the  instance  of  differenl  creditors,  and  at  the  same  term  of 
the  court  judgments  were  obtained  against  the  garnishee  in 
each  case,  for  the  sum  due  by  him  to  the  attached  debtor,  and 
executions  issuing  thereto  against  the  garnishee,  tested  of  the 
same  term,  were  put  into  the  hands  of  the  same  sheriff;  the 
money  collected  by  the  sheriff  must  be  applied  to  the  executions 
■  in,  without  regard  to  the  priority  of  time  in  issuing  the 
8 


114  ATTACHMENT— V. 

attachments  and  summoning  the  garnishee.     Freeman  v.  Grist, 
1.  Dev.  and  Bat.,  217. 

10.  An  attachment,  served  in  the  hands  of  a  garnishee  as  a 
debtor,  is  substantially  an  action  at  law  by  the  defendant  in  the 
attachment,  and,  therefore,  the  plaintiff  in  the  attachment  can- 
not recover  against  the  garnishee,  in  a  case  in  which  the  defend- 
ant in  the  attachment  could  not  have  recovered  the  same  debt. 
Pattern  v.  Smith,  7  Ired.,  438. 

11.  A  justice,  before  whom  an  attachment  is  returnable,  has 
no  right  to  refer  the  papers  to  the  county  court,  unless  it  ap- 
pears that  the  plaintiff  made  oath  before  him  that  the  garnishees 
owed  to  the  defendant  some  debt,  or  had  property  of  his  in  their 
possession,  or  that  they  made  such  a  statement  of  facts  that  the 
justice  could  not  proceed  to  give  judgment  thereon;  and  if  the 
process  be  returned  to  the  county  court,  without  some  of  these 
matters  being  certified  by  the  justice,  it  should  be  dismissed. 
Miller  v.  Bates,  8  Ired.,  477. 

12.  Where  A,  in  an  attachment  against  B,  had  been  summoned 
as  a  garnishee,  and  admitted  that  he  owed  B  in  a  certain  negotia- 
ble note,  payable  six  months  after  its  date,  and  it  appeared  that 
before  the  issuing  of  the  attachment,  the  note,  not  being  due, 
had  been  bona  fide  endorsed  to  another  person:  it  was  held,  that 
a  judgment,  against  the  garnishee  in  the  attachment,  was  not  a 
bar  against  a  recovery  on  the  note  by  the  endorsee.  Myers  v. 
Beeman,  9  Ired..  116. 

13.  A  garnishee  has  a  right  to  object  that  the  attachment, 
under  which  he  is  summoned,  is  void.  Houston  v.  Porter,  10 
Ired.,  174. 

14.  Where,  in  a  suit  by  A  and  B,  copartners,  against  C,  he 
pleaded  that  in  a  garnishment  by  A,  one  of  the  present  plain- 
tiffs, he  had.  admitted  that  he  owed  A  the  sum  for  which  ho 
is  now  sued,  and  he  bad  paid  the  judgment  rendered  against 
him  mi  tin.-  garnishment;  it  washeld,  that  this  was  not  a  defence) 
for  lie  had  confessed  a  debt  due  to  A  alone,  being  different  from 
that  to  A  and  B  now  sued  on.     Cook,  v.  Arthur,  11  Ired.,  407. 

15.  When  one  is  summoned,  as  a  garnishee  in  an  attachment, 
who  owes  a  note  which  is  negotiable,  it'  he  choose  to  stand  upon 
his  rights,  no  judgment  can  be  taken  against  him,  without  proof 
that  the  absconding  debtor  still  holds  the  note,  for,  otherwise,  it 
does  not  appear  thai  lie  is  indebted  to  the  absconding  debtor. 
Ormonrt  v.  Moye,  11  Ired,  564.     % 

16.  The  service  of  ao  attachment  in  the  hands  of  a  garnishee, 
creates  allien  on  the  debt  or  money  due  by  him  to  the  debtor, 
so  that  lie  cannot  by  payment  to  the  debtor,  subsequent  thereto. 
discharge  himself  from  liability.  Therefore,  where  the  garnishee, 
in  his  garnishment,  admits  his  indebtedness  to  the  defendant  in 
the  attachment,  and  subsequently  thereto  his  agent  pays  the 
debt  so  admitted  to  be  due  by  him,  the  plaintiff  is  nevertheless 


ATTACHMENT— V.-VL-VH  115 

•entitled  to  have  the  debt  condemned  in  the  hands  of  the  gar- 
nishee, to  satisfy  his  demand.  Nor  is  it  any  defence  to  the  gar- 
nishee, that  before  he  was  summoned  his  agent  had  notice  from 
a  third  person  not  to  pay  the  debt,  as  the  plaintiff  had  threat- 
ened, or  was  about  to  sue  out,  an  attachment,  TindeU  v.  J  full, 
Busb.  3. 

17.  Where  one  contracted  with  a  dentist,  and  paid  to  him  the 
full  value  for  a  set  of  artificial  teeth  for  his  wife,  and  the  husband 
afterwards  absconded;  it  was  held,  that  the  dentist  was  not  liable 
as  garnishee  to  a  creditor,  for  the  value  of  the  teeth.  Cherry  v. 
Hooper,  7  Jones,  82. 

See  (Estoppel — By  matter  record,  8.) 

VI.       OF    THE    REPLEVY    BOXD. 

1.  Ail  original  attachment  is  intended  only  to  compel  appear- 
ance, and  tin'  sureties  to  the  replevy  bond  stand  as  bail,  ami  may 
surrender  their  principal  in  discharge  of  themselves.  Hightour 
v.  Murray,  1  Hay.,  21,  (28.) 

2.  An  aetioij  of  del  >t  will  not  lie  on  a  replevy  bond  given 
under  the  attachment  law,  a  sci.  fa.  being  the  proper  remedy. 
Summers  v.  Parker,  N.  C.  Term  li.  147,  (,">7'.». ) 

VII.       ATTACHMENT    AGAINST   STEAMBOATS    AND  OTUER  VESSELS,  UNDER   THK 
ACT    OF    1854. 

1.  The  proceeding  by  attachment  against  a  vessel  for  repairs, 
ifec,  under  the  act  of  1854,  is  a  procceeding  in  rent,  and  no  per- 
son can  be  allowed  to  interplead,  claiming  the  property  to  be 
his;  but  any  person  interested  in  the  thing  (the  vessel)  can  make 
himself  a  party  to  the  proceeding,  and  may  thus  have  an  oppor- 
tunity of  contesting  the  justnessof  the  claim.  Cameron  v.  The 
Br'ni  MareeUus,  3  Jones,  83,  (See  Rev.  Code,  eh.  7.  sec,  27 
and  28. ) 

2.  The  meaning  of  the  act,  Rev.  Code,  eh.  7.  see.  27  and  28, 
concerning  liens  on  vessels  for  repairs,  &c,  is  that  the  attach- 
ment, given  for  the  enforcement  of  the  Hen,  must  lie  issued  so  as 
to  have  T  h  :\  essel  seized  before  she  is  allowed  to  depart  from  the 
port  or  place  of  repairs.  Herrimjion  v.  Schooner,  Hugh  Chris- 
holm,  8  .'ones,  4. 

3.  Where  an  attachment  was  sued  out  against  the  owner  of  a 

steaml t  under  the  R(  v.  Code,  ch    7.  see.  -J.~,  ami  28,  it  was  held, 

that  the  bond  for  the  prosecution  of  the  suit  was  properly  made 
payable  to  the  "owner"  of  the  boat;  and  that  tin-  "owner, "  or 
whoever  had  interest  enough  in  the  suit  to  have  himself  made 
a  party  to  the  proceeding,  could  have  a  remedy  on  .-ujhbond. 
Bryan  v.  Steamer  Enterprise,  8  Jones,  260. 

4.  The  Rev.  Code,  ch.  7,  sec.  (!.  which   authorizes  the  salo  of 


1 16  ATTACHMENT— VlI.-YIII.-IX. 

perishable  articles  levied  on  under  an  attachment,  applies  only 
to  cases  of  original  attachment,  and  not  to  those  against  steam- 
boats and  other  vessels,  under  the  27th  and  28th  sections  of  the 
same  chapter;  and,  it  was  held,  therefore,  that  a  sale  by  the 
sheriff,  oi  a  vessel  so  levied  on  under  the  act,  was  void,  and 
could  not  have  the  effect  to  discontinue  the  suit      Ibid. 

VIII.       ATTACHMENT    ON   ACCOUNT   OF   AN    INJURY    TO   PERSON  OR    PROPERTY. 

1.  The  affidavit,  required  under  the  Revised  'Code,  eh.  7,  sec. 
16,  for  an  injury  to  the  property  of  another,  must  set  forth  that 
the  defendant  absconded  or  concealed  himself,  within  three 
months  after  the  injury  was  done,  and  the  attachment  must  be 
issued  within  that  time.      Webb  v.  Bolder,  5  Jones,  ,">f>2. 

2.  A  defect  in  the  affidavit,  in  such  case,  in  not  stating-  that 
the  defendant  absconded,  &c,  within  three  months  after  the 
injury  was  done,  may  be  taken  advantage  of  by  a  motion  to  dis- 
miss, without  the  property  attached  having  been  replevied. 
Bid. 

3.  A  false  warranty,  or  a  deceit  in  the  sale  of  personal  prop- 
erty, is  not  "an  injury  to  the  property  of  another,"  for  which  an 
attachment  is  authorized  to  be  issued  under  the  Revised  Code, 
ch.  7,  sec.  17.     Ibid. 

tX.       OF    JUDGMENT    AND    EXECUTION    IN    ATTACHMENTS,  'AND  THEIR  EFFECTS. 

1.  By  the  special  wording  of  the  two  acts  of  1777  and  1793, 
a  final  judgment  in  an  original  attachment  is  equivalent  to  a 
final  judgment  in  any  other  case;  and  debt  will  lie  on  it.  Eng- 
lish x.  Retinoids,  Nr.  C.  Term'];.  92,  (529. )     (See  Rev  Code,  ch.  7.) 

2.  The  suingout  a  fi.  fa.  after  a  final  judgment,  in  an  attach- 
ment case,  is  a,  waiver  of  the  lien  created  by  tin/  levy  of  the 
attachment.  The  property  should  have  been  condemned,  and  a 
vend*  expo,  issued;  and,  if  the  goods  seized  be  not  of  tin'  value 
of  the  ihlit.  the  plaintiff  may  have  in  the  same  writ  :i  vt  n  1.  expo. 
for  those  seized,  and  a  fi.  fa.  for  the  residue.  Amyett  v.  Back- 
house, .">  Murph.,  63. 

;>.  Where  an  attachment  *was  levied  upon  a  quantity  of  corn, 
supposed  do  he  the  properly  of  the  defendant,  and  upon  an  order 
of  sale  the  officer  returned  that  older  attachments  previously 
levied  had  exhausted  all  the  property,  it  was  held,  that  a  judg- 
ment upon  this  attachment  was  void,  because  the  defendants 
interest  in  the ;prdperty  had  been  divested  by  the  previous  at- 
tachments.    Armstrongs.  Bdrshaw,  1  Dev.,  187. 

4.  Where  A  sued  Out  an  attachment,  directed  to  the  sheriff 
or  any  constable,  and  returnable  to  the  county  court  or  before 
any  justice,  but  at  no  certain  day.  and  it  was  Levied  by  a  con- 
stable, and  the  plaintiff  after-wards  obtained  judgment  on  it  in 


ATTACIIM  ENT— IX.  1 IV 

the  comity  court  and  issued  execution,  it  ivas  held,  that  the 
attachment  being  returnable  at  no  certain  day  and  before  no 
certain  court  was  void;  2ndly,  that  there  being  no  appearance 
of  the  defendant  to  cure  any  defect  in  the  process,,  both  a  legal 
seizure  of  the  property  and  a  due  advertisement  were  necessary 
to  render  the  judgment  valid;  and  as  a  constable  »was  not,  with- 
out special  order,  authorized  to  make  the  seizure,  it  was  illegal 
and  the  judgment  a  nullity.  Washington  v.  Sanders,  "2  Dev., 
343. 

5.  A  judgment  rendered  on  an  original  attachment  cannot  be 
avoided,  or  reversed,  or  treated  as  a  nullity,  by  a  mere  stranger, 
for  error  or  irregularity  in  the  proceedings  upon  which  the  judg- 
ment was  rendered     Skinner  v.  Moore,  2  Dev.  and  Bat.,  138. 

(i.  Under  the  act  of  1777,  the  county  in  which  an  attachment 
should  issue,  returnable  to  the  county  court,  is  the  county  from 
which  the  debtor  has  removed,  or  is  removing  himself  privately; 
and  if  it  be  issued  and  returned  te  the  county  court  of  another 
county,  where  the  debtor  may  have  property,  it  may  be  abated 
by  plea  for  the  want  of  jurisdiction,  as  to  the  person;  but  if  no 
such  plea  be  put  in,  and  the  creditor  obtain^  a  judgment  for  his 
debt,  the  same  being  within  the  jurisdiction  of  the  county 
courts,  such  judgment  will  be  valid  and  conclusive.  Ibid.  (See 
Rev.  <  lode,  ch,  7.  sec.  1.) 

7.  By  our  attachment  law,  a  judgment  obtained  in  a  proceed- 
ing in  an  original  attachment,  is  placed  upon  the  same  footing 
with  a  judgment  rendered  in  a  court  of  record  according  to  the 
corns.'  of  the  common  law.  It  cannot  be  collaterally  impeached 
by  evidem  e  or  by  plea,  except  by  a  plea  denying  the  existence 
of  the  record,  and  is  conclusive,  until  it  be  set  aside  by  the  same 
court,  or  reversed,  upon  a  writ  of  error  or  on  appeal,  by  a  supe- 
rior court.     Ibid. 

8.  Where  it  appears  from  the  record  that  the  property  attached 
is  not  the  property  of  the:  del  iter,  the  judgment  thereon  is  abso- 
lutely null  and  void;  for  an  appearance,  or  service  of  process  on 
the  person  or  property  of  the  defendant,  is  essential  to  the  valid- 
ity of  every  judgment^  but  the  tact,  that  the  property  attached 
was  ne!  that  of  the  defendant,  cannot  be  shown  by  evidence 
dehors  the  record;  and  the  interlocutory  judgment,  condemning 
tin'  property  attached  as  the  property  of  the  defendant,  is  as 
much  conclusive  as  any  other  judgment,  until  it  be  set  aside  or 
reversed.     Ibid. 

9.  An  irregularity  or  defect  in  the  affidavit,  upon  which  an 
attachment  issued,  if  error  at  all.  will  not  render  the  judgment 
void.  And  a  judgment  for  a  larger  sum,  than  that  sworn  to  in 
the  affidavit,  is  erroneous  for  the  excess  only.     Ibid. 

10.  If  the  attachment  state  that  the  debtor  has  absconded 
from  the  coufttj  in  which  it.  issues,  it  seems  that  it  cannot  be 
contradicted,  as  to  that  fact  by  evidence  in  pais,     Ibid. 


118  ATTACHMENT— IX. 

11.  A  plaintiff  in  attachment,  who  obtains  a  judgment,  sues 
out  execution  thereon,  and  becomes  the  purchaser  at  the  sheriff's 
sale,  will  not  be  affected  by  any  irregularity  in  the  suing  out  of 
the  attachment,  or  any  other  proceeding  prior  to  the  judgment. 
The  judgment  is  the  act  of  the  court,  and  is  a  sufficient  authority 
for  what  is  regularly,  this  is'  according  to  the  course  of  the 
court,  done  under  it.     Ibid. 

12.  There  is  no  law  in  the  statute  book,  which  more  demands 
a  strict  construction  than  the  attachment  law;  and  very  trivial 
objections  to  the  process,  and  to  the  jurisdiction  as  to  the  per- 
sons and  the  like,  are  to  be  listened  to,  if  brought  forward  at  the 
proper  time.     Ibid. 

13.  The  levy  of  an  attachment  upon  land  creates  such  a  lien 
upon  it,  that  if  there  be  a  subsequent  judgment  of  condemna- 
tion and  a  sale  of  the  land  under  a  writ  of  v&nd.  expo.,  the  title 
of  the  purchaser  will  supersede  that  of  one.  claiming  under  a 
judgment  and  fi.  fa.,  posterior  to  the  date  of  the  levy  of  the 
attachment,  but  prior  to  the  judgment  of  condemnation  and 
vend.  expo.     Harbin  v.  Carson,  i  Dev.  and  Bat.,  388. 

14.  Under  the  attachment  law,  a  judgment  taken  against  a 
defendant,  who  has  not  appeared,  or  some  of  whose  property  lias 
not  been  attached,  is  utterly  void.     Heaver  v.  Keith,  5  Ired.,  374. 

15.  Although  a  plaintiff,  who  obtains  a  judgment  on  an  attach- 
ment levied  on  land,  may  have  taken  judgment  also  against  gar- 
nishees, he  has  still  a  right  to  have  the  land  sold,  under  the 
levy  and  order  founded  thereon.     Simpson  v  Hiatt,  13  Ired.,  470. 

16.  A  judgment  in  attachments,  like  judgments  at  common 
law,  cannot  be  collaterally  impeached  by  evidence  that  the  plain- 
tiff's cause  of  action  had  not  accrued  at  the  time  his  attachment 
issued.     Harrison  v  Pender,  Busb.,  78. 

17.  Where  A  obtained  judgment  on  an  attachment  against 
B,  upon  a  rule  against  him  by  other  judgment  creditors  of  B, 
in  attachment,  to  show  cause  why  the  moneys  raised  by  the 
sheriff's  sale  should  not  be  applied  to  their  executions  and  not 
to  his,  it  was  held,  that  A's  judgment  could  not  be  collaterally 
impeached  by  evidence  showing  that,  at.  the  time  it  was  finally 
obtained,  the  debt  had  been  paid.  Harrison  v.  Simmons, 
Busb.,  80. 

18.  Where  a  constable  levied  an  attachment  on  real  estate, 
and  the  same,  after  a  judgment  of  condemnation  by  a  justice 
having  jurisdiction  of  the  amount,  was  returned  to  court,  where 
an  order  of  sale  mis  made,  it  was  held,  that  any  irregularity  of 
the  form  of  the  process  in  respect  to  the  day  of  its  return  was 
cured,  and  that  due  advertisement  was  to  be  presumed  to  have 
been  made,  and  consequently  a  purchaser  under  the  execution!, 
acquired  a  good  title.     McLane  v.  Moore,  6  Jones,.  52.0. 


ATTORNEY,  AT  LAW— AUCTION,  &C.  11$ 


ATTORNEYS   AT  LAW. 

1.  Foreigners  not  naturalized  cannot  be  licensed  as  attorneys 
at  law.     Ex  parte  Thompson,  3  Hawks,  355. 

2.  An  attorney  at  law  cannot  retain  a  commission  of  five  per 
cent,  on  the  amount  of  a  bond  placed  in  his  hands  for  collection, 
when  the  money  is  paid  in  the  clerk's  office,  and  the  plaintiff  ap- 
plies in  person  for  it.     Leach  v.  Strange,  3  Hawks,  601. 

3.  Ordinarily  the  act  of  an  attorney  at  law  in  a  cause  is  to  be 
taken  as  the  act  of  the  party  whom  he  represents.  But  when 
the  assignor  of  a  note  stipulated  that  it  should  be  placed  in  the 
hands  of  a  particular  attorney  for  collection,  and  by  the  act  of 
that  attorney  the  interest  of  the  assignor  was  injured,  it  was 
held,  in  an  action  between  the  assignor  andassinee,  that  the  for- 
mer was  bound  by  the  act  of  the  attorney,  and  that  the  fact  that 
he  had  no  redress  against  the  attorney  did  not  discharge  him. 
Grice  v.  Ricks,  3  Dev.,  62. 


AUCTION   AND  AUCTIONEERS. 

1.  Where  the  terms  of  an  auction  sale  were  that  bond  and 
surety  should  be  given,  a  person  made  a  bid  and  the  property- 
was  knocked  down  to  him,  and  he  failed  to  give  the  bond  and 
security,  held,  that  he  was  liable  for  the  difference  between  his 
bid,  and  a  less  sum  bid  by  another  on  a  re-sale.  Christmas  v. 
Jenkins,  2  Hay,  395,  (594.) 

2.  When  the  terms  of  an  auction  are  advertised  or  otherwise 
published,  every  bidder  is  presumed  to  know  them,  and  to  pro- 
mise that  he  will  comply  with  them.     Ibid. 

3.  It  is  the  duty  of  an  auctioneer  to  pay  over  to  his  employer 
the  proceeds  of  the  sales  made  by  him,  and  if  he  fail  to  do  so  it 
will  be  a  breach  of  that  clause  of  his  official  bond,  which  binds 
him  "  to  do  and  permit  whatever  and  all  the  law  requires." 
Commissioners  of  Raleigh  v.  HoUoway,  3  Hicks,  234. 

4.  The  purchaser  of  a  slave  at  auction,  where  the  terms  were 
that  bund  with  security  should  be  given  before  the  title  passed. 
obtains  a  title,  although  the  bond  of  another  person  is  taken  for 
the  purchase  money.     Shelton  v.  Yancy,  1  Dev.,  370. 

5.  A  crier  who  dues  nothing  but  proclaim  the  bids  made  at 
an  auction  sale,  is  the  servant  of  the  vendor,  and  has  no  author- 
ty  to  bind  him  in  any  respect.     Mushat  v  Breva.rd,  4  Dev.,  73. 

6.  If  A  employ  a  crier  or  auctioneer  to  cry  property  at  a  pub- 
lic auction,  without  directing- him  not  to  cry  the  bid  of  B,  and  Bis 
the  last  and  highest  bidder,  and  the  property  is  knocked  off  to 


120  AUCTION,    &C— AVERAGE.— AWARD. 

hirn,  then  the  contract  is  complete,  provided  B  complies  with  the- 
terms  of  the  auction.     Bicksv.  BatUe,  7  lred.,  269. 

7.  In  such  case  it  is  no  defence  to  an  action  by  B  against  A 
for  a  breach  of  this  contract,  that  A  had  previously  told  B  that 
his  bid  should  not  be  received,  unless  he  so  directed  the  crier  or- 
auctioneer,  or  unless  he  objected  at  the  time  of  the  bidding  and 
before  the  property  was  -knocked  off.     Ibid. 

8.  What  is  stated  by  an  auctioneer  in  his  advertisement  may 
be  explained  by  what  is  said  by  him  at  the  time  of  the  sale. 
Rankin ;  v.  Matthews,  7  lred,  286. 

See-  (Fraud — At  auction  sales.);. 


AVERAGE. 


1.  When  a  vessel  is  in  danger  of  being  Ifeet,  and  part  of  the 
goods  on  board  are  thrown  overboard  to  save  the  residue,  and 
the  vessel  afterwards  comes  safe  into  port,  the  goods  saved  shall, 
be  subject  to  average;  otherwise  should  the  vessel  never  get 
into  port.     Ferguson  v.  Fitt.  1  Hay.,  239,  (274.) 

2.  In  the  case  of  average  loss,  whether  one  of  fhe  freighters 
can  support  a  separate  action  against  the  master  or  owner,  Qu.? 

Wiggins  v.  Tatom,  2  Hay.  385,  (587,) 

3.  A  claim  on  the  ground  of  general  average  can  only  arise 
where  a  portion  of  the  cargo  is  sacrificed  for  the  safety  of  the 
rest,  and  that  by  the  direct  agency  of  man.  by  throwing  over- 
board a  part  of  the  cargo,  or  the  whole,  in  a  moment  of  peril; 
Hence,  when  the  defendant's  trunk,  containing  money  and  ap- 
parel, was  put  ore  board  the>  plaintiff's  lighter,  which  was  over- 
set.in  a  sudden  flaw  of  wind,  the  defendant  was  held  nol  to  be 
liable  to  contribute  to  pay  the  expense  of  raising  the  lighter.,, 
although  by  such  means  he  obtained  his  trunk.  Irving  v..  Gla- 
zier, 3  Car.     L.  R.  604,  (406.) 


AWARD. 

See  (Abitration  and  Award.) 


BAIL— I.  121 

BAIL. 

T.  Proceedings  against  bail  I    VI.  Plea  of  the  surrender  or  death  of  the 

II.  Bail  Bond.  principal. 

Ill    Of  the  liberality  of  bail,  and  what    VI1-  Of  bail   on  a  warrant  issued  by  a 

acts  will  discharge  them.  j"sice  in  a  cWA  case- 

IV.  Of  remedies  for  bail.  VI11  0f  bail  iu  criminal  eases. 

V.  Plea  of  nut  tiel  record. 

I.       PROCEEDINGS    Ad.UNST    BAIL. 

1.  It  is  not  necessary  in  a  sci,  fa.  against  bail  to  sol  forth  tliat 
a  ca.  sa.  issued  against  the  original  defendant.  If  the  bail  wish 
to  avail  themselves  of  a  want  of  a  ca.  sa,,  they  must  do  it  by 
plea.  Langdon  v.  Trot/.  2  Hay.,  15,  (165,)  >s-  P.  Arroiton  v. 
Jordan,  4  Hawks.  98.  (As  to  the  law  now,  see  Rev.  Code,  ch.  11, 
sec.  3.) 

2.  Bail  must  be  proceeded  against  by  sci.  fa.,  not  by  action  of 
debt.     Hunter  v.  HiU,  2  Hay,  223  (398.; 

3.  The  county,  to  which  the  ca.sa.  against  the  principal  should 
issue,  is  the  county  in  which  the  defendant  was  arrestee),  unless 
the  return  of  the  sheriff,  or  something  equally  satisfactory, 
evinces  that  the  county,  where  the  defendant  was  taken,  no 
longer  continues  to  be  his  proper  county.  Benton  v,  Duffy, 
Conf  Rep.  98,  (229  ) 

4.  The  return  of  two  niliUs  is  good  service  of  a  .so',  fa.  against 
bail.  Woodfork  v.  Brornfield,  1  Murph.,  187. 

5.  The  proper  county,  prima  facie,  to  which  a  ca.  sa.  should 
issue,  in  order  to  charge  the  bail,  is  the  county  where  the  original 
writ  was  executed.  J'>ut  if  the  defendant  have  acquired  a  dom- 
icil  in  another  county,  and  the  plaintiff  have  notice  of  it,  the  ca. 
sa,  ought  to  issue  to  thai  county.     Firiley  v.  Smith,  3  Hew.  247. 

li.  A  temporary  n  sidenee  in  another  county,  by  a  single  man 
without  property,  is  not  such  a  change  of  domicil  i  s  justifies  the 
plaintiff  in  issuing  theca.  sa.  to  any  other  county  than  that  in 
which  the  original  writ  was  executed.     Ibid. 

7.  A  sheriff,  who  dispenses  with  a  bail  bond  upon  executing 
mesne  pr :ss,  becomes  thereby  special  bail,  and  the  non  pay- 
ment of  the  amount,  for  which  he  may  lie  fixed  as  bail,  is  a 
breach  of  his  official  bond.     Barker  v.  Munroe,  4  Dev.,  412. 

8.  To  charge  a  sheriff  as  special  bail,  when  he  neglects  to 
return  a  bail  bond,  no  notice  to  him  of  his  liability  is  necessary. 
Gray  v.  Hoover,  4  Dev.,  475. 

9.  The  bail,  on  a  plea  to  a  sci.  fa.  seeking  to  charge  them, 
cannot  take  advantage  of  any  irregularity  in  the  ca.sa.  against 
the  principal,  but  they  may  show  that  the  ca.  sa.  was  void. 
Howzerv.  Bellinger,  1  Ired,,  475. 

10.  The  ca.  sa.  must  strictly  pursue  the  judgment  and  be  war- 


122  BAIL— I. 

ranted  by  it,  as  iHfthe  judgment  be  against  two  or  more,  tbe  ca 
sa.  must  issue  against  all,  otherwise  it  is  void.     Ibid. 

11.  Where  a  ca.  sa.  and  a  fi.  fa,  were  loth  iasued  at  the  same 
time,  and  the  latter  was  levied,  and  while  so  levied  the  sheriff 
returned  the  ca.  sa.  "not  found,"  the  bail  eanuot  avail  themselves 
of  this  in  a  plea  to  a  sci.  fa.  to  subject  them.  It  is  only  an 
irregularity,  and  the  bail  cannot  by  plea  take  advantage  of  an 
irregularity  in  the  process  against  the  principal,  as  if  the  ca.  sa. 
has  been  sued  out  more  than  a  year  and  a  day  after  the  judg- 
ment.    Wheeler  v.  BoucliMe,  5  Ired.,  584. 

12.  Under  the  plea  of  mil  tiel  record  to  a  sci.  fa.  against  bail, 
no  evidence  can  be  given  of  any  objection  to  the  bail  bond,  which 
is  no  part  of  the  record.     Hamlin  v.  McNeil,  8  Ired..  172. 

13.  A  plea  that  the  defendants  were  not  bail  is  not  a  good  one. 
If  the  persons  alleged  to  be-  bail,  wish  in  any  way  to  avoid  the 
bind,  they  must  plead  mm  est  factum-    Ibid. 

14.  Where  a  sci.  fa,  against  bail  does  not  set  forth  how  the 
defendant  became  bound  as  bail,  nor  recite  the  cause  of  action,. 
nor  the  court  in  which  the  judgment  against  the  principal  was 
obtained,  it  is  fatally  defective.     Smith  v.  SJiuic,  8  Ired.,   233. 

15.  Where  a  judgment  is  against  several,  and  the  sheriff  had 
not  taken  bail  from  one;  it  was  not  necessary  before  the  act  of 
1844,  eh.  31.  to  issues  a  ca.  sa,  against  all,  to  subject  the  defen- 
dant as  bail  for  that  one..     Trice  v.  Turrentine,  It)  Ired,  543; 

16.  Under  the  act  of  1844,  ch.  31,  it  is  not  necessary  to  issue 
a  ca.  sa.  at  all,  in  order  td  subject  bail.  That  act  applies  to  the 
remedy  only,  and  not  to  the  contract  of  the  bail.  Ibid,  (See 
Rev.  Code,  ch.  11,  sec.  3.) 

17.  The  3rd  section  of  the  act  of  1844,  ch.  31,  (providing  fur 
the  plaintiff  a  remedy  against  the  bail  of  the  defendent  in  a 
judgment)  embraces  all  judgments.  It  is,,  therefore,  no  defence 
for  the  bail,  upon  a  sci.  fa.  t<>  subject  him,  that  no  ca.  sa.  had 
issued  against  his  principal,  on  a  judgment  in  an  action  ex 
delicto,    'fihie  v.  McDufjh,  BusbT  131. 

18.  In  &  sci.  fa,  to  subject  a  sheriff  as  special  bail,  for  having 
failed  to  take  a  bail  bond,  it  is  not  necessary  to  set  forth  the  de- 
claration in  the.  original  action,  but  only  to>  state  the  cause  of 
action,  as,  for  instance,  that  it  was  an  action  of  trespass  on  the 
case;  but  it  is  necessary  to  state  how  the  sheriff  became  bail,  as 
that  the  original  writ  came  to  his  hands,,  and  that  he  arrested 
the  defendant  and  failed  to  take  bail,  whereby,  &C.,  he  became 
special  bail,  &c:      Malpass  v.  Fcnncll,  3  Jones,  7it. 

19.  A  judgment  exceeding  tire  sum  demanded  in  the  writ  is 
erroneous,  but  not  void;  and  its  validity  cannot  be  questioned 
collaterally.  Therefore,  where  the  writ  demanded  $300,  and  the 
jpdgment  was  fur  $309,  it  was  held  that  a  sheriff",  who  had  became 
hail  by  failing  to  take  a  bail  bond  from  the  defendant,  could  not 
avail  himself  of  this  variance  as  a  defence  in  a  suit  by  sci.  fa.  to' 
subject  him  as  bail.     Savage  v.  Hussey,  3  Jones,  149. 


BAIL — T.-IT.  123 

20.  A  sci.  fa.  to  subject  a  sheriff  as  special  bail,  by  reason  of 
his  default,  need  not  set  forth  the  cause  of  action,  upon  which  the 
judgment  against  the  defendant  was  obtained.     Ibid. 

21.  Where  bail  is  given  in  a  suit  brought  in  the  county  court, 
and  there  is  an  appeal  to  the  superior  court,  where  final  judg- 
ment is  rendered  against  the  defendant,  the  latter  is  the  proper 
court  from  which  to  issue  a  sci.  fa.  against  the  bail.  Turner  v. 
White,  4  Jones,  llli. 

22.  In  a  set.  fa.  to  subject  bail,  it  is  sufficient  to  set  out  that 
there  was  a  judgment,  without  stating  the  form  of  action  in 
which  it  was  obtained.  And  it  is  also  sufficient  to  allege  gen- 
erally, that  the  persons  became  bound  as  bail  at  the  time  of  the 
execution  of  the  original  writ,  and  liable  as  such  by  virtue  of 
the  act  of  Assembly.     Ibid.     (See  Rev.  Code,  ch.  11,  sec.  1.) 

23.  In  a  sci.  fa.  against  bail,  where-the  bail  bond  was  assigned 
to  A,  "the  plaintiff  therein  named,"  and  the  bond  showed  that 
the  plaintiff  was  B,  who  sued  to  the  use  of  A,  it  was  held  that  the 
proceeding  in  the  name  of  B  was  proper.     Ibid. 

24.  Whether  the  provision  in  eh.  10,  sec.  6,  of  the  Rev.  Stat., 
requiring  a  trial  of  the  pleas  entered  by  bail  to  be  had  at  the 
first  term,  is  not  altered  by  the  Rev.  Code,  ch.  11,  sec.  4,  quaire: 
Clark  v.  Latham.  8-  Janes,  1. 

25.  If  a  sheriff  fail  to  take  bail,  the  plaintiff  need  not  file 
exceptions  nor  give  him  notice,  to  fix  him  as  bail.  Adams  v. 
Jones,  1  Winst.,  199. 

26.  A  sheriff  is  said  to  fail  to  take  bail,  when  the  paper 
returned  by  him  as  a  bail  bond  is  so  defective  and  imperfect  as 
to  be  adjudged  not  to  be  such.     Ibid. 

See  (Pleading — Of  scire  facias  and  pleadings  thereon,  4.) 

II.    HAIL    BOND. 

1.  A  paper  purporting  to  be  a  bail  bond,  and  having  all  the 
forms  of  one  except  the  seal,  will  not,  on  the  plea  of  iv/I  del 
record,  support  a  sci.  fa.,  calling  on  those  who  signed  it  to- 
answer  as  bail.      Walker  v.  Lewis,  2  Hay.,  16,  (168.) 

2.  When  the  substance  of  a  bond  is  prescribed  by  statute,  a 
bond  which  is  so  drawn  as  to  include  every  obligation  imposed. 
by  the  Legislature  and  to  afford  every  defence  given  by  law,., 
will  be  valid,  although  it  may  slightly  vary  from  the  literal  form 
prescribed;  and  it  is  not  necessary  to  insert,  hi  the  condition  of 
a  bail  bond,  every  alternative  contained  in  the  8th  section  of  the 
act  of  1777,  on  which  bail  are  chargeable,,  because  the  right  to 
be  discharged  is  not  given  the  bail  by  the  words  of  the  bond, 
but  by  a  public  law  of  which  the  court  is  bound  to  take  notice. 
Modes  v.  Vaughn  2,  Hawks  167..  (See  Rev.  Code.  ch.  105, 
sec.  19.) 

3.  A  sheriff  may,,  but  he  is-  not  bound  to,  insist   upon  two 


124  BAIL— II, 

sureties  to  a  bail  bond;  if  he  take  one  who  is  insufficient,  the 
plaintiff  may  except;  but  the  bond  will,  nevertheless,  be  good, 
and  will  be  so  held  either  on  a  sd.  fa.  or  in  an  action  of  debt 
upon  it.     Arrenton  v.  Jordan,  4  Hawks,  98. 

4.  An  assignment  of  the  bail  bond,  by  the  sheriff  to  the  plain- 
tiff, is  not  required  when  the  suit  is  in  the  county  court.  Ibid. 
(The  law  itself  now  makes  the  assignment  in  all  cases,  Rev. 
Code,  ch.  11,  sec.  2.) 

5.  Upon  a  writ  against  A,  the  sheriff  took  a  bond  executed 
by  the  said  A  and  one  B,  and  conditioned  that  tin-  said  A  and 
B  should  make  their  personal  apppearance,  &c.,  to  answer,  &c., 
it  wan  held  that  the  bond  was  not  authorized  by  the  act  in  the 
Revised  Statutes,  ch.  109,  sec.  19,  and  was,  therefore,  void;  that 
it  was  not  a  bond  containing  the  contract  of  bail  in  its  terms, 
nor  could  it  be  inferred  from  the  bond  that  one  was  bail  for  the 
other,  but  by  it  each  was  alike  bound  to  perform  the  judgment. 
Clark  y.   Walker,  3  Ired.,  181.     (See  Rev.  Code,  ch.  105,  sec.  19.) 

6.  A  writ  was  executed  on  A  ami  B,  and  the  sheriff  took  from 
them  a  bond  with  a  condition  "that  if  the  above  bounden  A  and 
B  do  make  their  personal  appearance  before  the  .fudge  of  the 
Superior  Court  of  Law,  &o,  then  and  there  to  answer,  &c,  and 
there  to  abide  the  judgment  of  the  said  court,  ami  not  depart 
tlie  same  without  leave  first  had  and  obtained,  and  if  the  sureties 
shall  well  and  truly  discharge  themselves  us  special  bail  of  the 
said  A  and  B,  then  the  obligation  to  be  void,  &o."  Afterwards 
a  noil,  pro's,  was  entered  as  to  A.  and  a  judgment  obtained  against 
B,  and  it  mis  lull  that  the  bond  did  not  constitute  A  the  bail  of 
B.     Bradhurst  v.  Einoin,  8  lred.  495. 

7.  The  assignment  "fa  bail  bond,  by  the  administrator  of  a 
sheriff,  passes  no  such  interest  in  it  as  to  entitle  the  assignee  to 
maintain  an  action  in  his  own  name  against  the  bail.  Mann  v. 
Hunter,  -  Jones,  1 1. 

8.  A  bond  taken  by  a  sheriff  on  executing  a  writ,  payable  to 
him  as  sheriff  in  double  the  amount  of  the  sum  claimed  in  the 
writ,  and  conditioned  lor  the  defendant  to  appear  at,  &c,  "to 
answer  the  plaintiff  in  a  case  of  damages  four  thousand  live  hun- 
dred dollars,  and  then  and  there  to  stand  to  and  abide  by  the 
judgment  of  i  he  court,  "is  a  bail  bond.    Watty.  Johnson,  3  Jones,.124. 

9.  An  inconsistent  recital  in  a.  bail  bond,  as  to  who  was  the 
party  plaintiff,  may  be  rejected  as  surplusage  where  there  is 
enough  besides  on  the  face  of  the  instrument,  to  show  in  fact 
who  wax  the  plaintiff.      Turner  v.   White.  4  .Tones  111!. 

10.  The  signing  and  sealing  by  a  person  at  the  foot  of  a  bail 
bond,  without  his  name's  being  mentioned  in  the  condition,  or 
in  any  part  of  the  body  of  the  instrument,  does  not  make  it  his 
hand,  nor  him  the  bail  of  the  principal.  Adams  v.  Hedgepeth,*!) 
Jones,  327. 

See  (Arrest  9.) 


BAIL- 11 1.  125 

III       OF   THE   LIU'.ILITY    OF    BAIL    AND    WHAT    ATS    WILL  D1SCHABGB    THEM. 

1.  If  the  writ  be  altered  from  debt  bo  case,  the  bail  will  be 
discharged.     Bryan  v.  BraMey,  Tay.  77,  (54.) 

2.  A.  releasi  by  the  plaintiff 's  attorney  of  the  person,  who  is 
bail  for  the  defendant  "frofia  being  security  for  him,"  is  a  release 
(if  him  as  bail.     Hughes  v   HoUingsworthi  1  Murph.,  14ii. 

3.  If  there  be  a  judgment  against  two,  and  the  plaintiff  take 
if&e  in  execution  under  a  ca.  so.  and  discharge  him,  the  bail  of 
heth  is  discharged.     Bryan  v.  Simontm,  1  Hawks.  51. 

4.  If  two  joint  obligors  be  sued,  aad  one  of  them  give  bail, 
sn.-li  bail  cannot,  upon  being  compelled  to  pay  the  debt  by  pro- 
ceed ings  against  him  as  such,  sustain  an  action  against  the 
other  ooligor  fi  r  money  paid  to  his  use,  there  being  no  privity 
between  the  bail  of  one  obligor  and  his  co-obligor.  Osborne^. 
Cunningham,  4  Dev.  and  Bat,  423. 

5.  A  reference  of  a  cause  to  arbitration,  by  order  of  a  court, 
the  aw., rd  to  be  a  rule  of  court,  will  not,  in  this  State,  discharge 
the  bail;  though,  it  seems,  that  in  England;  where  a  cause  is 
referred  to  arbitrators,  the  bail  are  discharged,  unless  a  verdict 
be  taken  for  the  plaintiff,  to  stand  as  security  for  what  may  be 
awarded.     Cunningham  v.  Hovxtt,  1  [red.,  !>. 

.(i  Where  a  writ  is  issueu  against  two  copartners  for  a  part- 
nership debt,  and  one  of  them  is  arrested  and  gives  bail,  such 
bail,  upon  behag  afterwards  compelled  by  due  course  ol  law  to 
pay  the  debt,  3aas  no  remedy  except  against  the  individual  fur 
whom  he  beci  me  bail,  as  he  has  no  claim  against  t lie  other  part- 
ner.    Foley  v.  Eobards,  3  Ired.,  177. 

7.  A  sheriff  became  bail  for  two  defendants,  against  whom  a 
judgment  was  obtained,  upon  which  a  ca.  sa.  issued,  which  was 
returned  not  found  as  to  one  and  was  executed  upon  the  other, 
when  he  id  for  his  appearance  at  court  to  take  the  lien- 
fit  of  the  ad  for  the  relief  of  insolvents.  Before  the  day  for  his 
appearance  al  court,  hi  and  the  plaintiff  entered  into  an  agree- 
ment, that  he  would  secure  the  plaintiff  in  some  other  debts  In- 
owed  him,  and    in  consideration   thereof  the  plaintiff  was  to 

him  from  the  judgment,  under  which  lie  was  arrested 
and  w  add  qo1  oppo  e  his  discharge,  but  it  did  not  appear  that 
any  relea  se  had  e"\    -        0  i  »  cuted;  it  was  Jwld  that  the 
ment  did  not  i  a  release  of  titi  debt,  nor  did  it  discharge 

the  sh   rifl   from  his  liability  as  bail  of  the  other  d    endant.     Fer- 
raKv.  Bru  I  !  ,  67. 

8.  Wh  :re  a  ji  int  judgment  is  obtained  against  three,  and  a  ca. 
sa.  issued  against  all,  and  the  sheriff  is  directed  by  the  plaintiff 
nottoexecuti  a.  i.  on  two,  and  ;he  accordingly  forbears  to 
do  so,  the  plaintiff  cannot  proc  I  the  bail  of  the  third 
defendant.      Tria  v.  Turreniine,  5  Ired.,  236. 


126  BAIL.— III.-iy. 

9.  A  ca.  so.  issued  on  a  judgment  against  several  persons,  must 
be  returned  as  to  all,  before  the  bail  of  any  can  be  subjected. 
Waugli  v.  Hampton,   5  Ired.,  241. 

10.  "Where  a  writ  is  brought  in  the  name  of  A  B  &  Co.,  and 
it  is  afterwards  amended  so  as  to  substitute  in  the  place  of  A  B  & 
Co.,  the  names  of  A  B,  C  D  and  E  F,  composing  the  firm  of  A  B  & 
Co.,  it  seems  that  this  will  operate  as  a  discharge  of  the  bail.  Smith 
v.  Shaiv,  *s  Ired.,  233.  (Such  an  amendment  would  not  now  dis- 
charge the  bail.     See  Bev.  Code,  ch.  11,  sec.  11.) 

11.  When  the  alteration  of  a  writ,  after  bail  has  been  given, 
changes  the  nature  of  the  action,  the  bail  is  discharged.  But 
where  in  an  action  against  two  joint  and  several  contrac- 
tors, a  non  suit  is  entered,  and  afterwards  the  nonsuit  is  set 
aside  as  to  one  and  not  as  to  the  other,  the  bail  of  the  one  as  to 
whom  the  nonsuit  was  set  aside  and  a  verdict  and  judgment 
subsequently  rendered  against  him,  is  not  discharged.  Brad- 
hurst  v.  Pearson,  10  Ired.,  55.     (See  Rev.   Code,  ch.   11.  sec  11.) 

12.  A  bail,  against  whom  a  sci.  fa.  has  ben,  issued,  cannot 
avail  himself  of  the  defence  that  his  principal  has  been  arrested 
on  a  at.  sa.,  at  the  instance  of  another  person,  and  discharged 
under  the  insolvent  debtor's  law.  Norment  v.  Alexander,  10 
Ired.,  71. 

18.  Where  an  action  is  against  two,  the  entering  of  a  nolle. 
prosequi  against  one  does  not  discharge  the  bail  of  the  other. 
Hamlin  v.  McNeil,  10  Ired.,  306. 

1  !-.  A  sheriff  who  has  taken  a  bail  bond,  but  fails  to  assign  it, 
in  consequence  of  which  he  is  held  as  special  bail,  and  com- 
pelled to  pay  the  recovery  had  against  the  defendant,  may  sue 
on  the  obligation  thus  taken,  as  a  common  law  bond,  and 
recover  from  the  obligor,  in  the  intended  bail  bond,  the  amount 
recovered  out  of  him.  Higgins  v.  Glass,  2  Jones,  353.  (The 
law  itself  now  makes  the  assignment  of  a  bail  bond.      See  Rev. 

Code,  eh.    11.  see.  2.) 

15.  Where  a  principal  was  brought  into  court  by  his  bail,  who 
announced  publicly  that  they  surrender  him,  hut  he  was  not 
personally  known,  to  the  sheriff*  or  to  any  person  else  in  the 
court  except  the  presiding  judge;  and  he  was  not  shown  to  the 
sheriff,  hut  upon  being  ordered  into  custody  fled  from  the  court 
room  and  made  his  escape;  it  was  held,  that  these  facts  did  not 
amounl  to  a  proper  surrender,  and  it  was  error  in  the  courtthen 
sitting  so  to  adjudge,  and  to  order  a  record  to  that  effect  to  be 
made'.     Rountree  y^WaddiM,  7  Jones,  309. 

IV.       OF   REMEDIES    FOR    TAIL. 

1.  |,,  an  action  by  a  person  as  hail,  against  one  who  fraudu- 
].  ,  assisted  in  removing  the  principal,  the  allegation  in  the 
declaration,  that  the  plaintiff  was  the  bail,  is  supported  by  proof 


BAIL.— IV.  -V.  -VI.  127 

of  his  being  special  bail  as  sheriflj-under  the  act.    March  v.  Wilson, 
Busb.  143.     (See  Rev.  Code,  eh.  11,  see.  1.) 

2.  In  such  action,  it  is  not  necessary  to  averin  the  declaration 
that  a  sci.  fa.  had  issued  against  the  plaintiff  as  bail,  before  he 
satisfied  the  judgment  against  his  principal.     Ibid. 

3.  A  sheriff,  who  has  failed  to  assign  a  bail  bond,  cannot  as 
special  bail  recover  from  the  obligors  in  the  1  .'ml,  until  he  has 
paid  the  money  to  the  plaintiff  in  the  judgment,  or  at  least  until 
there  is  a  judgment  against  him  for  it.  Pool  v.  Hunter,  1  Jones 
144.  (The  act  of  Assembly  now  makes  an  assignment  of  the 
bail  bond  without  any  act  of  the  sheriff.  See  Rev.  Code,  ch.  11, 
sec.  2.) 

See  (Bail — Of  the  liability  of  bail  and  what  will  discharga 
them,  4-6.) 

V.       PLEA   OF    NUL   TIEL    RECORD. 

1.  When  bail  pleads  nul  tie!  record  to  a  sci.  fa.,  the  record  of 
the  judgment  is  referred  to  by  the  plea,  and  if  that  agree  with 
the  record  set  forth  in  the  sci.  fa.,  though  not  in  that  recited  in 
the  ca.  sa.,  it  is  sufficient.  Handy  v.  Richardson,  2  Hay.,  138. 
(311.) 

2.  The  bail  cannot  take  advantage  ot  the  fact  that  a  judgment 
against  their  principal  has  lain  dormant  more  than  a  year  and  a. 
day,  before  sci.  fa.  against  them.     Ibid. 

3.  Where  costsaccrued  after  judgment,  and  were  not  set  forth 
in  the  set*,  fa.  against  the  bail,  held,  on  the  plea  of  mil  tid  record 
to  be  no  variance.     Alston  v.  BuHock,  Oonf.  Rep.,  77.  (20'.).) 

4.  The  plaintiff  in  a  sci.  fa.  against  bail  is  not  bound  to  pro- 
duce the  bail  bond  upon  the  plea  of  nul  tid  record,  the  bail  l«>nd 
being  no  part  of  the  record.  Mason  v.  Cooper,  1  Car.  L,  R., 
472,(83.) 

5.  Bail  cannot  take  advantage  ot  the  omission  to  issue  a  ca. 
sa.  upon  the  plea  of  mil  tid  record,  for  that  refers  only  to  the 
record  of  the  judgment.  He  must  plead  a  special  plea.  (Tray 
v.  Hoover,  4  Dev.  477).  (The  issuing  of  a  ca.  sa.  is  uo1  necessary 
now  to  subject  bail.     See  Rev.  Code,  ch.  11,  sec.  3.) 

VI.       PLEA    OF  THE    SURRENDER    OR    DEATH    OF    THE    PRINCIPAL. 

1.  Where  one,  who  was  proceeded* against  as  bail  by  sci.  fa. 
in  the  county  court,  appealed  from  the  judgment  against  him  to 
the  superior  court,  he  was  permitted  to  plead,  pvii  darrein  con- 
tinuan  e,  in  the  latter  court  a  surrender  of  bis  principal.  Davi- 
son v.  Mull  1  Hay.,  364,  (417.) 

2.  The  plea  of  •'surrender,''  by  bail,  must  state  whether  the 
surrender  was  made  to  the  court,  or  to  the  sheriff  out  of  court. 
or  it  will  be  bad  in  form.     Ibid. 


128  RAIL.— VI. 

3.  Surrender  of  the  principal  by  hi*  bail  at  any  time,  before 
the  final  judgment  upon  the  scLfa.,  discharges  the  bail  from  the 

%osts  of  the  set.  fa.     Peace  v.  Person,  1  Murph.,  188.     (Altered 
see  Rev.  Code,  oh.  11,  sec.  10.) 

4.  A  principal  may  make  a  voluntary  surrender  of  himself 
without  the  agency  or  even  knowledge  of  his  bail,  and  placing 
himself  in  the  power  of  the  sheriff  (though  at  the  time  under 
moral  coercion,)  for  the  purpose  of  being  detained,  is  an  effec- 
tual surrender  by  the  principal  to  discharge  his  bail.  Dick  v. 
Stoker,  1  Dev.,  91. 

5.  No  matter  can  b«  pleaded  in  discharge  of  the  liability  of 
bail,  except  the  death  or  surrender  of  the  principal.  If  it  be 
unlawful  for  the  principal  to  come  into  the  State,  or  if  he  be  im- 
prisoned  abroad  tor  a  criminal  offence,  the  court  may,  in  its  dis- 
cretion, relieve  the  bail,  but  even  these  facts  cannot  be  pleaded 
in  bar  of  the  action  against  the  bail.  Iielief  is  given  in  such 
eases  by  staying  the  proceedings  against  the  bail,  or  by  entering 
an exoneretur ,  upon  motions  for  which  the  parties  may  lie  put  to 
their  oaths,  and  the  merits  tlms  determined.  Rut  no  relief  will 
be  given  where  the  principal  is  imprisoned  abroad  for  debt. 
Granhery  v.  /W,  ;!  Dev.,  155. 

6.  A  plea  of  the  death  of  the  principal  cannot  be  received  in 
the  supreme  court,  because  it  has  no  jury  to  ascertain  its  truth 
Ibid. 

7.  A  sheriff,  who  ifi  special  bail,  may  surrender  the  principal 
to  himself,  and  if,  after  the  surrender,  he  detains  the  principal 
and  notifies  the  plaintiff  thereof,  his  liability  as  bail  ceases;  and 
if  there  be  an  escape  afterwards,  the  remedy  is  by  debt  or  case 
for  the  escape.     Hugginsv.  FonvUh,  3  Dev.  392. 

8.  Bail  may  surrender  their  principal  after  verdict,  and  before 
a  final  judgment  against  them,  and  the  act,  which  allows  the, 
surrender,  necessarily  authorizes  some  mode  of  averring  it;  it 
should  be  by  a  plea  so  framed  as  to  enable  the  plaintiff  to  deny 
the  surrender,  and  contest  the  identity  of  the  principal.  Moodi) 
v.  Stockton,  •">  Dev.,  531. 

If  Although  the  bail  may  surrender  their  principal,  and  the 
surrender  be  entered  of  record  at  the  term  when  judgment  is 
obtained,  yef  if  the  principal  do  not  pray  the  committal  of  the 
principal  in  execution  and  the  latter  should  afterwards  gout 
large,  this  is  not  a  discharge  of  such  principal  from  execution 
by  the  plaintiff,  so  as  to  relieve  the  bail  from  their  responsibility, 
as  such,  for  another  joint  defendant,  ffawyer  v.  Bellinger,  1 
[red.,  475. 

If).  Th  i  costs  allowed  against  bail,  notwithstanding  a  surren- 
der, &c,  by  the  act,  Rev.  Code,  eh.  11.  sec.  19,  do  not  include 
such  ;is  were  incurred  by  the  plaintiff,  on  account  of  an  improper 
and  he  ffectual  appeal  by  him.     Clarkx.  Latham,  8  Jones,  1. 


B  AIL.— YIL-VIII.— BAILMENT.  120 

WE.       OF    BAIL    ON   A   WABRABT     ISSUED    BY    A     JUSTICE    IN   A   CIVIL   CASE. 

1.  An  oral  requisition,  by  a  plaintiff  in  a  warrant,  to  an  officer 
to  take  bail,  is  sufficient  to  justify  the  officer  in  making  an  arrest 
and  insisting  on  bail.  But  an  officer  is  not  by  virtue  of  his  office 
an  agent  of  the  plaintiff  for  exacting  bail,  and  it  may  be  doubted 
whether  he  can  beome  an  agent  for  that  purpose.  Stale  v.  Kir- 
b)J,  4  lied.,  [)0. 

VIII.       OP    BAIL    IN    CRIMINAL    CASKS. 

1.  A  person  convicted  of  manslaughter  may  be  bailed,  when 
the  execution  of  the  sentence  is  suspended.  State  v.  Smith. 
Mar.  53,  (50.) 

2.  A  man  indicted  for  murder  cannot  be  bailed  upon  affidavits 
taken  ex  parte  bv  persons  not  authorized  to  take  them.  State  v. 
Dew,  2  Hay.,  12,  (239.)    S.  C,  Tay.  142,  (83.) 

3.  After  conviction  for  an  offence  not  capital,  the  prisoner  is 
not  entitled  to  bail  as  a  matter  of  right  after  an  appeal  to  the 
supreme  court;  it  is  a  question  of  sound  discretion  with  the 
presiding  judge  of  the  court,  whence  the  appeal  is  taken.  State 
v.  Ward,  2  Hawks,  443.  (A  person  convicted  of  a  misdemeanor 
is  now  entitled  to  bail  after  such  appeal  Rev.  Code,  ch.  35, 
sec.  12.) 

4.  Where,  in  a  criminal  case,  in  which.,  after  conviction,  the 
defendant  has  been  sentenced  to  imprisonment,  and  appeals 
.merely  for  delay,  without  filing  any  exceptions  or  making  any 
defence  in  point  of  law,  the  supreme  court  thinks  this  an  abuse 
of  the  right  of  appeal,  and  that  the  superior  court  should  not 
admit  the  convict  to  bail  during  the  pendency  of  the  appeal. 
State  v.  Daniel.  8  Ired.,  21.  (But  see  Rev.  Code,  ch.  35,  sec. 
12.) 


BAILMENT. 

1.  A  bailee,  who  undertakes  to  do  an  act  gratuitously,  as  to 
carry  money,  is  bound  to  use  ordinary  care  ami  caution;  if  he 
lose  the  money  entrusted  to  him,  but  does  not  lose  hi-  own,  it  is 
very  strong  evidence  that  he  did  nut  use  proper  caution.  Bland 
v.  W&mack,  2  Murph.,  .'>7.">. 

2.  "When-  a  bailee  undertakes  to  perform  a  gratuitous  act,  from 
which  the  bailor  alone  receives  benefit,  the  bailee  is  only 
liable  for  gross  neglect  or  fraud.     But  when  the  profession  of 

9 


130  BAILMENT— I. 

the  bailee  implies  skill,  the  want  of  such  skill  is  imputable  as 
gross  neglect.     Stanton'v.  Bell,  2  Hawks,  145. 

3.  No  length  of  possession  by  a  bailee,  as  such,  will  bar  the 
right  of  the  bailor;  and  if  the  bailment  be  admitted,  during  the 
longest  enjoyment,  a  title  in  the  possessor  cannot  be  presumed 
from  the  possession.     Green  v.  Harris,  3  Ired.,  210. 

4.  A  bailee  may  turn  his  possession  into  a  tortious  and  ad- 
verse one;  but  then  there  must  be  some  demand  or  effort  of  the 
bailor  to  regain  the  possession,  and  a  refusal  or  resistance  on  the 
part  of  the  bailee,  or  some  act  must  be  done  by  the  bailee  chang- 
ing the  nature  of  the  possession.  But  the  naked  declaration  of 
the  bailee,,  that  he  claimed  tin1  property  in  his  own  right,  with- 
out any  change  of  the  possession,  and  without  any  demand  or 
wish  to  resume  the  possession  by  the  bailor,  although  such 
declaration  lie  public  or  made  even  to  the  bailor  himself,  will  not 
instantly  terminate  the  bailment  and  immediately  convert  the 
possession  into  an  adverse  one.     Ibid. 

5.  Though  a  bailee  in  possession  may  maintain  an  action  of 
detinue  against  mere  wrong-doers,  yet  persons  who  claim  under 
jihe  will  of  the  alleged  bailor  are  not  to  be  considered  wrong- 
doers, against  whom  the  bailee  may  on  that  account  maintain 
this  action  againt  them.     Ibid. 

(>.  If  the  owner  of  wheat  or  grapes  send  them  to,  another's 
mill  or  wine  press,  where  they  are  converted  into  flour  or  wine, 
the  act  of  the  bailee  does  not  alter  the  property  in  the  converted 
articles;  but  it  is  otherwise  if  the  act  of  conversion  be  done  by 
a  trespasser,  for  in  such  case  the  trespasser  becomes  the  owner 
of  the  transformed  articles,  and  he  is  liable  to  the  owner  in  tres- 
pass or  trover  for  their  value.      Worth  v.  Novtham,  4   Ired,,  102. 

7.  If,  however,  the  articles  are  not  so  far  changed  by  the  tres- 
pass as  to  lose  their  identity,  as  they  are  not  is:  the  case  of  cloths 
made  into  garments,  leather  into  shoes,  trees  squared  into  tim- 
ber, and  iron  made  into  bars,  they  ma\  be  reclaimed  bythe  orig- 
inal owner  in  their  new  and  improved  state.     Ibid. 

8.  If  a  bailee  misuses  the  thing  bailed,  an  action  on  the  case 
lies;  if  he  refuse  to  deliver  it  when  properly  demanded  by  the 
bailor,  an  action  of  trover  isthc  remedy;  but  if  tin;  thing  bailed 
lie  destroyed  bythe  bailee,  then,  and  then  only,  will  trespass  vi 
ft  armis  ilf  bout*  exporiatis  lie.     Setzar  v.  Butli  r,  5  Ired.,  212. 

S).  In  the  cise  of  a  bailment,  the  bare  being  t nisi ed.  with 
another's  goods  is  a  sufficient  consideration  for  the  eng  imi  a\ 
if  the  bailee  once  enter  upon  the  trust  and  take  the  goods  into 
his  possession.  Ai  where  a  man  undertakes  to  collect  notes  for 
another,  without  mentioning  any  consideration,  and,  takes  the 
notes  lor  thai  purpose,  there  is  a  sufficient,  legal  consideration 
for, the  engagement.     Eobinson  v.  ThreadqiU,  13  Ired..  39. 

10.  The  rule  that  a  bailee  shall  not  be  heard  to  deny  the  title 
of  his,  bailor,  before  surrendering  the  possession,  does  not  apply 


BAILMENT.  131 

where  the  bailee  claims  under  a  deed  in  trust,  made  after  the 
bailment  by  the  bailor  for  his  benefit.  Burnett  v.  Fulton,  3 
Jones,  48G. 

11.  If  the  hirer  of  a  slave  put  him  to  work  at  blasting  rocks 
in  the  night  time,  when  it  is  so  dark  that  he  cannot  see  the  falling 
stones,  it  will  not  be  taking  reasonable  care  of  him.  But  if  a 
hired  slave,  of  his  own  accord  and  without  the  knowledge  or 
consent  of  the  hirer,  and  against  his  directions,  take  the  place  of 
one  of  the  regular  blasting  hands  in  the  twilight  of  the  evening, 
when  his  presence  cannot  easily  be  discovered,  and  is  killed 
by  a  falling  stone,  the  hirer  will  not  be  responsible  for  the  loss. 
Couch  v.  Jones,  4  Jones,  402. 

12.  Where  the  hirer  of  a  slave  permitted  him  to  go  home  to 
see  his  master,  who  was  alleged  to  be  sick,  from  the  town  of 
Plymouth  to  the  county  of  Currituck,  across  the  Albemarle 
Sound,  and  he  availed  himself  of  the  occasion  to  escape  out  of 
the  State,  so  that  he  could  not  be  recovered,  it  was  held,  that 
though  tin- distance  the  slave  had  to  go  was  eighty  miles  and 
across  the  Sound,  yet  as  all  the  route  was  within  the  State,  the 
hirer  was  not  guilty  of  such  negligence  as  to  make  him  liable 
for  the  loss  of  the  slave.      Woodhouse  v.  McRae,  5  Jones,  1. 

13.  Where  a  bailee,  Whotook  cotton  to  store  and  keep  for  hire, 
permitted  it  to  remain  with  the  roping  oft,  the  bagging  turn, 
the  cotton  loose  and  the  under  bales  in  the  mud  and  water,  so 
as  to  become  stained,  and  much  of  it  destroyed;  it  was  held  to 
be  a  want  of  ordinary  i  arc,  which  made  the  bailee  liable  for  the 
damage  to  the  article.     Morelhead  v.  Brown,  6  Jones,  367. 

14.  In  a  question  of  diligence  and  ordinary  care  in  the  storing 
and  keeping  of  cotton  in  bales,  it  is  competent  to  prove  the  cus- 
tom of  the  place,  as  to  the  manner  of  storing  and  keeping  that 
article  there.     Ibid. 

15.  Where  a  person  is  in  possession  of  the  property  of  a  feme, 
and  it  is  alleged  thart:  he  held  it  as  her  bailee,  the  bailment  must 
be  established  by  satisfactory  proof,  otherwise  the  usual  and 
natural  presumption  will  be  that  lie  holds  for  his  own  use.  His 
want  of  title  will  not  justify  the  implication  of  a  bailment. 
Smith  v.  Reid,  6  Jones,  494. 

1(3.  Where  a  father  gave  certain  slaves  by  deed  to  his  daugh- 
ter, who  was  an  infant  and  so  remained  until  alter  her  marriage, 
but  he  retained  them  in  his  possession,  denying  the  efficacy  of 
the  deed,  and  claiming  to  hoi, I  them  as  his  own.  his  saying  at 
the  e  Line  time  that  they  were,  or  would  he  his  daughter's,  is  not 
sufficienl  evidence  that  beheld  the  slaves  as  her  bailee.     Ibid. 

17.  The  rule  that  one,  wrongfully  holding  the  property  of  an 
infant,  may  be  considered  as  the  guardian  or  bailee  of  the  infant, 
is  for  the  lit1'  i'-  benefit,  and  for  the  furtherance  of  his  remedy, 
but  thi  has  no  right  to  set  it  up  for  his  own  b 

against  the  infant  owner.     Ibid. 


132  BAILMENT.— BANKRUPT. 

18.  Where  the  defendant  borrowed  a  horse  of  the  plaintiff  and 
put  him  into  a  lot  which  had  been  used  for  such  purpose  many 
years,  and  the  horse,  being  nearly  blind,  and  the  weather  wet, 
and  the  lot  somewhat  slanting,  slipped  and  fell  upon  a  stump  and 
thereby  broke  his  thigh ;  it  was  held,  that  there  was  such  negli- 
gence shown  as  to  render  the  defendant  liable  for  the  loss. 
Furl  a ik'  v.  I/arris,  fi  Jones,  532. 

See  (Estoppel — By  matter  other  than  by  record  or  deed,  4-5- 
8-11-27.)     (Tenant's  in  common,  24.) 


BANKRUPT. 

1.  The  bankrupt  law  of  Scotland  cannot  affect  any  goods, 
estate  or  debts  due  to  the  bankrupt  here;  and,  therefore,  they 
may  be  attached  here  by  a  creditor  under  our  attachment  law. 
McNeil  v.  Colquohoon,  2  Hay.,  24,  (179.) 

2.  Under  the  bankrupt,  law  of  the  United  States,  (passed  in 
1800  and  expired  in  1806,)  the  commission  and  assignment  con- 
stitute proof  of  the  trading,  bankruptcy,  the  time  thereof  and 
appointment  of  the  assignees.  Barclay  v.  Carson,  2  Haw, 
243,  (430.) 

3.  The  assignees  of  a  bankrupt  partner  may  recover  a  moiety 
of  the  debt  due,  when  there  is  no  plea  in  abatement.     Hid. 

4.  A  demand  against  the  bankrupt,  which  the  defendant  has 
acquired  since  the  bankruptcy,  cannot,  by  the  express  words  of 
the  statute,  be  set  off  against  a  claim  of  the  assignees.     Ibid. 

5.  Under  the  United  States  bankrupt  law  of  L  800,  the  arrest, 
and  imprisonment  of  the  debtor  an    bi  :'    aec  ssary  to  constitute 
an  act  of  bankruptcy,  which  act  is  not  complete  until  the  time 
of  imprisonment   prescribed   by   law   is  completed.     Ni 
Pwjh,  1  Murph.,  149. 

II.  The  court  has  do  pow<  r  to  establish  any  other  act  as  one 
of  bankruptcy,  than  that  on  which  the  commission  issued,    Ibid. 

7.  Under  the  bankrupt  law  of  1841,  a  voluntary  applicant  i'nr 
its  benefits  cannot  be  discharged  from  an  arrest  under  a  ca.  so. 
issuing  on  a  judgment  of  a  State  court,  until  he  is  declared  a 
bankrupt  by  a  decree  of  the  district  court,  inwhich  his  applica- 
tion was  filed.     Exparte  Zkgenfuss,  2  [red.,  463. 

8.  Before  a  decree  of  bankruptcy,  a  debtor,  applying  volun- 
tarily for  the  benefits  of  the  bankrupt  law,  cannot  be  protected 
from  arrest  on  a  writ  issuing  from  any  court,  whether  State  or 
Federal;  but  after  such  decree  he  will  be  protected  against  the 
process  of  every  court,  because  then  his  property  is  taken  from 


BANKRUPT.  133 

'him  to  be  applied,  under  the  provisions  of  the  bankrupt  act,  to 
the  pro  rata  payment  of  all  his  creditors,  and  as  the  law  has 
taken  his  property  it  will  protect  his  person.     Ihid. 

9.  The  provision  in  the  bankrupt  law  of  1840,  which  prevents 
a  debtor  from  being  discharged  under  a  commission  of  bank- 
ruptcy where  the  debt  is  of  a  fiduciary  character,  extends  only 
to  special  trusts,  but  does  not  extend  to  implied  trusts,  such  as 
those  of  agents,  factors,  &c.      WiUiamsonv.  Dickens,  5  Ired.,  259. 

10.  When  a  creditor  has  a  claim  which  he  might  enforce,  either 
by  an  action  of  assumsit  or  in  fort,  if  he  sue  in  tort  his  action 
"will  not  be  barred  by  a  discharge  under  the  bankrupt  law;  and 
in  every  such  case,  the  form  of  the  action  brought  is  decisive  of 
the  question,  whether  the  discharge  is  a  good  bar  or  not.     Ibid. 

11.  The  creditor  is  not  barred  by  this  discharge,  where. 
although  he  might  have  proved  his  claim  under  th%  commission, 
he  is  not  bound,  to  do  so.     Ibid. 

12.  To  avoid  a  plea  of  a  discharge,  under  the  bankrupt  law, 
the  plaintiff  must  show  not  merely  a  mistake  or  omission  in 
making  the  inventory  on  the  petition  of  the  bankrupt,  but  a 
fraudulent  and  willful  concealment.  Sanders  v.  Smallwood,  8 
Ired.,  12.3. 

13.  Upon  a  case  agreed  on  such  plea,  the  court  cannot  give  a 
judgment  for  the  plaintiff,  unless  the  case  states  in  terms  a  willful 
c  mcealment,  or  unless  such  willful  concealment  necessarily  results 
from  the  facts  stated.     Ibid. 

14.  Where  a  marriage  settlement  had  been  made  on  a  wife, 
and  the  husband  afterwards  obtained  a  certificate  of  bankruptcy 
and  did  not  inventory  the  property  so  secured,  and  where  it 
appeared  also,  that  the  marriage  settlement  had  not  been  prop- 
erly registered,  and  was  therefore  void  against  creditors,  but  it 
did  not  appear  that  the  husband  knew  of  this  defect  in  the  regis- 
tration, or,  if  lie  did,  was  aware  of  its  operation  in  law,  it  was 
held  that  he  could  not,  by  the  court,  be  declared  to  have  been 
guilty  of  a  fraudulent  concealment  in  regard  to  such  property; 
Ibid. 

If).  As  a  certificate  of  bankruptcy  may  be  pleaded  in  all  courts, 
it  mav  be  impleaded  for  fraud  in  any  court.  State  v.  BetJiune, 
8  Ired.,  139. 

-16.  It  is  not  every  omission  of  property  in  the  schedule  of  a 
bankrupt,  that  invalidates  the  decree  of  discharge,  but  only  a 
fraudulent  conveyance  or  willful  concealment  of  it.     Ibid. 

17.  Where  a  debtor  has  been  discharged  under  the  bankrupt 
law.  a  surety,  who  might  have  come  in  under  the  commission, 
cannot  afterwards  recover  from  the  debtor.  Consequently  where 
the  surety  appointed  the  debtor  his  executor,  the  residuary  lega- 
tees of  the  surety  cannot  make  the  executor  accountable  for  the 
debt.      Tvbbs  v.  'Williams.  9  Ired.,  1. 


134  BANKRUPT.— BASTARDY.— I. 

18.  A  discharge  in  bankruptcy,  of  the  principal  debtor  in  a 
bond  or  note,  does  not  release  his  surety.  Jones  v.  Hagler,  15 
Jones,  542. 


BASTARDY. 

1.  Proceedings  in  bastardy  cases.  I    III.  Concealing  tie  birth  of  a  bastard 

II.  Of  legitimating  bastard  children.  child. 

•      1.       PROCEEDINGS    IN    BASTAKDI/V   CASES. 

1.  The  recognizance  on  a  charge  of  bastardy,  to  appear  at  the 
county  court,  must  be  taken  hefore  two  justices.  State  v.  ijnin- 
nery,  lay,  33,  (25.)  (One  justice  is  now  sufficient.  See  Bev. 
Code,  ch.  12,  sec.  L) 

i.  Under  the  act  of  1741,  a  married  w^oman  may,  upon  oath, 
accuse  a  man  of  being  the  fesfber  of  a  bastard  child,  1  egotten 
and  born  before  her  marriage,  and  the  man  thus  accused  shall 
be  charged  with  the  maintenance  of  the  child,  as  it  she  were  a 
single  woman.  WHMev.  West,  1  Murph,  319.  (See  Bev.  Code, 
ch.  12,  sec.  1.) 

3.  A  white  man,  charged  as  the  putative  father  of  a  bastard 
child,  is  at  liberty  to  show  that  the  mother  of  the  child  is  of 
mixed  blood,  and  within  the  fourth  degree,  and  therefore  ex- 
cluded from  swearing  against  him.  State  v.  Burrow,  3  Murph,, 
121. 

4.  The  county  court  cannot  charge  a  man  with  the  mainte- 
nance of  a  bastard,  when  it  appears  to  them  that  the  magis- 
trates, who  took  the  examination  of  the  woman,  have  proceeded 
against  law  in  the  judgment  they  have  given.     Hid. 

5.  Under  the  act  of  1741,  a  man  may  be  charged  with  a  bast. 
ard,  begotten  on  another's  wife;  and  although  she  cannot  be 
admitted  to  prove  the  non-access  of  her  husband,  she  may,  from 
necessity,  ho  examined  to  prove  her  criminal  intercourse  with 
another;  and,  if  it  appear  by  reason  of  her  husband's  imbecility 
or  absence,  that  he  could  not  have  been  the  father  of  her  child, 
it  shall  be  adjudged  a  bastard.  State  v.  Pettaway,  3  Hawks, 
623. 

6.  The  act  of  1790,  which  authorizes  a  summary  remedy 
against  the  reputed  father  of  a  bastard  child,  is  not  a  repeal  of 
the  common  law  right  of  suing  all  or  either  ol  the  obligors  on 
tlie  bastardy  bond;  and,  in  a  suit  on  such  bond,  the  notice  re. 
quired  by  that  act  need  not  be  shown.  Shaw  v.  Steicart,  1  Dev. 
and  Bat,  412.     (See  Bev.  Code,  ch.  12,  see.  7.) 


BASTARDY.— I  135 

7.  The  summary  remedy  prescribed  by  this  act  is  only  cumu- 
lative, and  applies  only  as  against  the  reputed  father,  and  not 
against  his  sureties  on  the  bastardj  bond.     Ibid. 

8.  A  defect  in  the  examination  of  a  single  woman,  as  to  the 
putative  father  of  her  bastard  child,  is  waived,  so  as  to  prevent 
She  proceedings  from  being  dismissed,  if  the  person  charged  ap- 
pear and  mane  up  an  issue  to  try  whether  he  be  the  father  or 
not.     Sinlr  v.  Carsdh,  2  Dev.  and  Eat.  368. 

9.  Orders  before  justices  in  bastardy  cases  being -matters  of 
police  only,  are  mure  favorably  construed  than  these,  which  are 
criminal  in  their  nature.  Ibid. 

10.  A  payment  to  ;>  mother,  made  by  the  reputed  father  of  a 
bastard  child,  in  full  satisfaction  for  the  maintenance  of  the  child, 
may,  if  made  before  any  order  for  that  purpose,  very  properlv 
influence  the  court  in  saying  what  further  sum  lie  shall  pay, 
if  it  shall  happen  that  the  child  is  supported  by  him  but  it  cer- 
tainly cannot  operati  as  a  liar  to  the  power  of  tile  court  to  make 
whatever  order  in  the  premises  the  maintenance  of  the  child,  or 
a  just  compensation  to  the  person,  who  may  have  maintained  th-e 
child,  may  require.     Slatev.  Harsliaw,  4  Dev.  and  Bat.,  371. 

11.  In  bastardy  cases,  an  examination  of  the  woman,  which 
does  not  appear  to  have  been  taken  within  three  years  from  the 
birth  of  the  child,  is  defective  and  may  be  quashed;  but  the  de- 
fect is  nut  necessarily  fatal,  and  all  objection  on  that  account  is 
waived,  if  not  made  in  the  regular  mode,  and  at  the  proper  time. 
The  objection  should  be  made  before  an  issue  of  bastardy  is 
tendered;  and  if  nut  then  made,  the  examination,  notwithstand- 
ing such  defect,  will  be  evidence  on  the  trial  -of  the  issue,  as  to 
the  truth  of  the  charge.     State  v.  Robeson,  2  Ired.,  4(3. 

12.  In  proceedings  to  charge  the  reputed  father  of  a  bastard 
child,  the  examination  of  the  mother  before  the  justice  must 
appear,  on  the  face  of  the  proceedings,  to  have  been  taken  with- 
in three  years  from  the  birth  of  the  child;  otherwise  they  should 
lie  quashed.  State  v.  Ledbetter,  4  Ired.,  242.  S.  P.,  State  v.  Led* 
better,  4  Ired.,  245. 

13.  If  the  county  court,  on  motion,  refuse  to  quash  the  pro- 
ceedings, the  party  may  either  appeal  to,  or  obtain  a  certiorari 
from,  the  superior  court.     Ibid. 

14.  Where  the  defect,  for  which  it  is  moved  to  quash  the  pro- 
ceedings, may,  consistently  with  the  truth,  lie  supplied  at  the 
instance  of  the  State,  it  is  competent  to  allow  the  necessary 
amendment.     Ibid. 

15.  The  examination  of  a  woman  before  justices,  charging  a 
man  with  being  the  father  of  her  bastard  child,  need  not  be 
signed  by  her.  And  when  such  examination  was  not  signed  by 
the  justices,  but  the  warrant  issued  by  them  was  on  the  same 
paper,  and  connected  with  it,  it  was  held,  that  this  was  a  suffi- 

'i !"  ii  ic -lien  of  the  examination,  though  it  would  have 


136  BASTAEDY.— I. 

been  more  proper  if  the  examination  bad  been  signed  by  the 
woman  and  attested  by  the  justices.  State  v.  Thompson,  4  Ired.,, 
484. 

16.  On  the  trial  of  an  issue  of  bastardy,  the  examination  of 
the  mother  having  been  made  by  act  of  assembly  prima  facie 
evidence,  the  defendant  can  only  introduce  evidence  to  show 
that  lie  is  not  guilty.  He  cannot  attack  the  credibility  of  the 
woman ;  nor  can  he  show  at  the  trial  that  she  was  an  incompe- 
tent witness  at  the  time  of  her  examination  before  the  justices, 
as  that  she  was  a  colored  woman,  or  had  previously  been  con- 
victed of  some  infamous  offence,  which  disqualified  her  from 
taking  an  oath.  State  v.  Patton,  5  Ired.,  180.  (The  examination 
of  the  woman  is  now  made  only  presumptive  evidence,  which 
may  be  rebutted.     See  Eev.  Codej  ch.  12,  sec.  4.) 

17.  If  the  reputed  father  wish  to  avail  himself  of  the  defence 
above  specified,  he  must  do  so  on  a  motion  to  quash  the  order  of 
filiation,  as  being  founded  on  incompetent  evidence.  And  if 
the  woman  after  her  examination  became  incompetent,  this  sub- 
sequent disability  will  have  no  other  effect  than  to  exclude  her 
from  being  a  witness  before  the  jury.     Ibid. 

18.  Where  a  woman  has  been  examined  on  oath  under  the 
bastardy  act  before  two  justices,  and  one  of  them  omits  to  sign 
the  examination,  the  court,  to  which  the  proceedings  are  returned 
may  permit  the  justice  then  to  sign  the  examination.  State  v. 
Thomas,  5  Ired.,  366. 

19.  In  a  case  of  bastardy,  after  the  defendant  has  had  an  issue 
tried  under  the  statute,  and  the  verdict  is  against  him,  it  is  too 
late  for  him  to  move  to  quash  the  proceedings,  because  the 
mother  of  the  child,  who  was  examined  before  justices  on  oath, 
was  a  woman  of  color.     State  v.  Lee,  7  Ired.  265. 

20.  One  who  appears  at  court,  to  answer  the  charge  of  being 
the  lather  of  the  child  about  to  be  born  a  bastard,  may,  before 
an  issue  is  made  up,  move  to  quash  the  proceedings,  on  the 
ground  that  the  mother  is  a  woman  of  color  within  the  fourth 
degree.  And  if,  upon  such  motion,  the  proceedings  be  qiiashed 
by  the  court,  a  subsequent  warrant  charging  the  same  person 
with  being  the  father,  issued  atter  the  birth  of  the  child,  cannot 
be  supported.     Slate  v.  Long,  9  Ired.,  488. 

21.  The  proper  relief  against  the  order  to  quash,  if  it  were 
deemed  erroneous,  was  by  appeal  or  certiorari.     Ibid. 

22.  On  the  trial  of  an  issue,  under  the  act,  Eev.  Stat.,  ch.  12,. 
sec.  4,  the  examination  of  the  woman  becomes  full  proof  of  the 
fact  of  paternity,  and  the  jury  is  bound  so  to  find,  unless  the 
defendant  shall  show  the  fact  not  to  be  so,  and  this  he  can  do, 
only  by  proof  of  impotence,  or  non  access  at  such  time,  as  by 
the  law  of  nature  he  could  be  the  father;  and,  therefore,  evi- 
dence to  show  the  improbability  of  his  being  the  father  is  inad- 
missible.    State  v.  Goode,  10  Ired.,  49.    (The  examination  of  the 


BASTARDY.— I.  137 

woman  is  now   only  presumptive  evidence  of  paternity.     See 
Rev.  Code,  eh.  12,  sec.  4.) 

23.  Upon  the  trial,  in  a  bastardy  case,  of  an  issue,  whether 
the  defendant  is  the  farther  of  the  child  charged  to  him,  it 
is  incompetent  to  introduce  any  testimony  to  show  that  the 
child  was  not  a  bastard.  The  adjudication  of  that  question 
belongs  to  the  justices,  before  whom  the  oath  of  the  woman  is 
made,  ami  if  they  decide  against  him  upon  that  question,  lie  has 
a  right  to  bring  it  up  by  a  certiorari.  State  v.  Wilson,  10 
Ired.,  131. 

24.  Where  a  single  woman  became  pregnant  in  the  county  of 
Brunswick,  where  she  had  always  resided,  and  went  to  Xew 
Hanover  where  she  was  delivered  of  the  child,  and  then  returned 
with  the  child  to  Brunswick;  it  teas  held,  that  the  justices  of 
Brunswick  had  the  jurisdiction  under  the  bastardy  act,  to  insti- 
tute proceedings  to  subject  the  reputed  father  to  the  maintenance 
of  the  child.     State  v.  Roberts,  10  Ired.,  350. 

25.  A  free  person  of  color  is  chargeable  with  the  support  of  a 
bastard  <hilcl,  begotten  by  hiin  on  a  white  woman.  State  v. 
Haiti,,;, <1;  11  Ired.,  32. 

I'li.  Although  a  bastard  be  born  in  one  county,  yet  if  the 
mother  and  child  afterwards  remove  to  another  county,  and  there 
acquire  a  residence,  before  proceedings  in  bastardy  are  had 
against  her,  those  proceedings  must  be  in  the  latter  county, 
which  is  alone  responsible  for  the  maintenance  of  the  bastard. 
State  v.  JevMns,  12  Ired.,  121. 

27.  Where,  under  an  order  of  the  county  court,  in  a  bastardy 
case,  the  defendant  gave  a  bond  to  comply  with  any  order  of  the 
county  court  in  that  case,  and  the  court  ordered  that  he  should 
immediately  pay  to  the  woman  a  certain  sum  then  ascertained 
to  be  due,  it  was  lield,  that  the  woman  might  release  her  interest 
in  the  said  sum.  and  that  such  release  would  bar  an  action  for 
the  same,  where  she  was  the  relator  and  the  suit  brought  in  the 
name  of  the  State,  to  which  the  bond  was  payable.  Stah  v. 
EVi,%  12  Ired.,  264. 

28.  In  a  proceeding  in  bastardy  returned  to  court,  the  follow- 
ing entry  was  made:  "Compromised.  Defendant  enters  into 
bond,  and  is  to  pay  all  costs;"  and  judgment  was  rendered  that 
the  defendant  pay  twenty  dollars  upstanler  to  hi  L.  the  mother; 
it  was  held,  that  this  was  a  judgment  of  the  court,  which  could 
not  be  sot  aside  at  a  subsequent  term  at  the  instance  of  the 
defendant;  and  further,  that  on  an  appeal  to  the  superior  court 
from  an  order  in  the  county  court  setting  aside  such  judgment, 
the  superior  court  could  not  enter  judgment  <1<  novo  for  the 
twentv  dollars,  but  should  issue  a  pron-ilrinlo.  S/nte  v.  Amnan, 
13,  Ired.,  241. 

29.  In  a  proceeding  under  the  bastardy  act,  evidence  may  be 
given,  on  the  part  of  the  defendant,  under  the  act  of  1850,  that 


138  I'. AS  TARDY.— I. 

the  woman,  whose  examination  is  offered,  is  unworthy  of  credit, 
from  her  character  or  from  any  other  cause.  State  v.  Floyd,  13 
Ired.,  382.     (See  Rev.  Code,  ch.  12,  sec.  4.) 

30.  A  child  born  in  weldock,  though  only  a  month  or  day  after 
marriage,  is  by  presumption  of  law  legitimate,  and  where  the 
mother  was  visibly  pregnant  at  the  marriage,  it  is  a  presumption, 

juris  et  de  jure,  that  the  child  was  the  offspring  of  the  husband, 
and  therefore  not  a  bastard.     State  v.  Herman   13  Ired.,  502. 

31.  Where  the  examing  justices  do  not  find,  whether  a  child, 
alleged  to  be  a  bastard,  was  born  .in  wedlock  or  not,  that  being 
a  question  before  them,  nor  find  whether,  if  born  in  wedlock, 
the  facts  existed  which  would  still  render  it  a  bastard,  as  non 
aceess  or  impotency  of  the  husband,  there  are  sufficient  grounds 
for  quashing  the  proceedings.  So,  also,  if  they  pass  upon  these 
facts  on  the  testimony  of  the  mother  alone,  for  as  to  them  she  is 
an  incompetent  witness.     Ibid. 

32.  All  suits  prosecuted  in  the  name  of  the  State  are  not  neces- 
sarily criminal,  suits,  as  distinguished  from  civil  suits;  the  true 
test  being,  that  when  the  proceeding  is  by  indict  mad  the  suit  is 
criminal,  and  when  by  action,  or  other  mode,  though  in  the  name 
of  the  State,  it  is  a  civil  suit.  HenGe,  a  proceeding  in  bastardy 
being  a  civil  suit,  where  the  defendant  made  up  an  issue  that  he 
was  not  the  father  as  charged,  it  was  held,  that  the  State  was, 
as  one  of  the  parties  to  it,  entitled  to  four  peremptory  challenges 
under  the  act,  Rev.  Stat.,  ch.  31,  sec.  37.  State  v.  Pate,  Busb., 
241.     (See  Rev.  Code,  ch.  31,  sec.  35.) 

33.  Where  the  mother  of  a  bastard  child  is  brought  before  a 
justice,  and  refuses  to  declare  on  oath  the  father  of  the  child*  but 
pays  the  fine  and  gives  bond  and  security  for  the  indemnity  of 
the  county,  she  cannot  afterwards  voluntarily  institute  proceed- 
ings against  the  reputed  father,  to  subject  him  to  the  mainten- 
ance of  the  same  child.     State  v.  Brown,  1  Jones,  129. 

34.  The  recognizance  for  his  appearance,  entered  into  by  a 
defendant  in  a  bastardy  case,  is  in  the  nature  of  a  bail  bond,  and 
the  defendant  has  a  right  to  surrender  iiinaself  in  discharge  of 
his  sureties,  after  being  called  out,  before  final  judgdment  against 
him  on  a  sci.  fa.     State  v.  Thompson,  3  Jones.  365. 

35.  Proceedings  in  bastardy  cannot  be  originally  commenced 
against  the  administrator  of  the  putative  father,  for  the  purpose 
of  subjecting  his  estate  to  the  maintenance  of  the  child.  Clem- 
ruts  v.  Durham,  7  Jones,  100. 

36.  On  an  issue  made  up  to  try  the  paternity  of  a  bastard 
child,  the  defendant  has  a  right  to  prove  that  the  child  does  not 

i    ble  him,  but  does  resemble  another  man  in  the  neighbor- 
hood.    State  v.  Bowles,  7  Jones,  r>79. 

See  (Jurisdiction — Of  the  county  and  superior  courts,  31.) 


BASTAEDY.— II.-IIL— BATTERY,  &C.  lgfl 

M.       OF    LEGITIMATING    BASTARD    CHILDREN. 

1.  Where  the  putative  father  procured  an  act,  changing  the 
name  of  the  child  to  his  own,  and  declaring  him  "forever  here- 

.  after  to  be  legitimated  and  made  capable  to  possess,  inherit  and 

enjoy  by  descent,  &c,  any  estate,  real  or  personal,  to  all  intents 
and  purposes  as  if  had  been  born  in  lawful  wedlock."  it  was  held, 
that  as  the  bastard  was  not  made',  legitimate  as  to  any  particular 
person,  the  only  effect  of  the  act  was  to  change  his  name.  Brake 
v.  BroW,  1  Dev,  110.  ; 

2.  An  act  legitimating  a  bastard,  as  to  his  putative  father,  does 
not  render  the  collaterals  of  the  latter  capable  of  succeeding  to 
the  former.      Ibid. 

3.  The  judgment  of  either  the  county  or  superior  .court,  upon 
the  subject  of  the  legitimation  of  a  bastard  child,  is  conclusive  so 
that  it  cannot  be  impeached  collaterally.  Craige  v.  Neely,  h' 
Joins.  170. 

4.  The  act  of  1^38,  eh../£,  concerning  the  legitimation  of  bas- 
tard children,  did  not  repeal  the  former  act  on  the  subject,  Rev. 
Stat.,  eh.  12,  sec.  8.  So,  it  was  held,  that  a  married  man.  notwith- 
standing such  act,  could  have  had  his  child  legitimated  if  the 
mother  had  left  the  State.  Ibid.  (The  law  is  now  altered  so 
that  a  man,  who  was  married  at  the  time  of  the  birth"  of  his  ille- 

ffitimate  child,  cannot,  under  any  circumstances  have  him  or  her 
egitimated.     See  Rev.  Code,  ch.  12,  sec.  8.) 

5.  A  private  act  of  the  Legislature  is  in  the  nature  of  an 
assurance  at  common  law,  and  must  depend  upon  the  consentof 
persons  in  esse,  whose  property  is  to, be  affected  by  it.  Hence, 
such  an  act,  declaring  a  bastard  to  be  legitimated,  and  to  be  the 
their  and  next  of  kin  of  a  particular  person,  gives  him  a  right  .-to 
claim  from  such  person  only.     Lee  v.  ShanMe,  6  Jones,  313. 

See  (Act  of  Assembly,  7.) 

■III.       CONCEALING    THE    BIRTH    OF    A    BASTARD    CHILD. 

See  (Indictment. — When  an  indictment  will  lie,  22 .]} 


BATTERY. 

S(  e  (Assault  and  Battery.) 


BAWDY    IIOl  SE. 

See  (Indictment — When  an  indictment  will  lie,  60-70.) 


140 


BENEFIT  OF  CLERGY,  &c.r 


BENEFIT   OF  CLERGY. 

See  (Indictment- — Of  the  trial,  verdict  and  judgment.  10-18— 
31-62-66-67,)  (Pardon,  6.) 


BEQUEST. 

See  (Devise)  (Legacy.) 


BIGAMY. 

See  (Indictment — Form  and  matters  relating  thereto,  62, 146.) 


BILLS    OF  EXCHANGE  AND   PROM- 
ISSORY NOTES. 


I.  What  is  a  bill  or  note. 
II.  Of  the  consideration  of  a  note  or 
of  endorsement. 
III.  What  notes  are  negotiable  under 

the  statute. 
IYS  Of  their  endorsement  and  transfer. 
V.  Of  a  demand. 
VI.  Days  of  grace. 

VII.  Notice  of  non-acceptance  and  non- 
payment. 


VIII.  Remedy  on  a  bill  ornote — Declar- 
ation, pleading  and  evidence 
IX.  Liability  of  parties,  and  how  dis" 
charged. 
X    Effect  of  a  bill  or  note,  when 
taken  for  goods  sold  or  for  a 
precedent  debt. 
XI.   Damages. 


I.       WHAT    IS   A    BTLL   OR   NOTE. 


1.  A  due  bill,  though  written  with  a  pencil  and  not  in  ink,  if 
legible,  is  a  good  promissory  note.  Gudqer  v.  Fletcher,  7,  Ired.,. 
372. 


BILLS  OF  EXCHANGE,  &c— II.-Ht.  141. 

II.       OF  THE    CONSIDERATION    OF    A   NOTE    OR    OF    ENDORSEMENT. 

1.  Although  notes  and  endorsements,  as  simple  contracts, 
require  a  consideration,  yet  it  has  been  long  settled  that  prima 
facie  they  imply  a  consideration,  so  as  to  throw  the  onus  on  the 
other  side  to  show  the  want  of  it.  McArthur  v.  McLeod,  f> 
Jones,  47.">. 

See  (Apprentice  14.) 

III.       WHAT    NOTES    ARE   NEGOTIABLE    UNDER    THE    STATCTE. 

1.  A  note  for  £100,  payable  in  tobacco,  is  not  negotiable. 
Hodges  v.  Clinton,  -Mar.  76,  (79,)  S.  P.  TindaU  v.  Johnston,  1  Hav. 
372,(428,)  Thompson  v.  Gaylord,  2  Hay.  150,  (326,)  JVoffordv. 
Greenlee]  L'onf.  Rep.  79,  (212.)     (Sec  Rev.  Code,  ch.  13,  sec.  1.) 

2.  A  bond  payable  partly  in  money  and  partly  in  specific  arti- 
cles is  not  negotiable  under  the  statute.  Jamieson  v.  Farr,  1 
Hay.,  182,  (210.) 

3.  A  bond,  upon  which  an  endorsement  was  made  at  the  time 
it  was  executed,  purporting  that  it  might  be  discharged  by  the 
payment  of  so  much  tobacco,  is  net  negotiable.  CampbeUv. 
Mwm/ord,  1  Hay.,  398,  (459.) 

4.  The  act  of  1786,  making  bonds  assignable,  did  nut  operate 
upon  bonds  theretofore  made.  WHJcinson  v.  Wright,  Govi.  Rep.. 
341,  (422,)  S.  C.  Tay.  227,  (103.)    (See  Rev.  ( lode,  ch.  13,  sec.  1.) 

5.  A  bill  or  note,  the  payment  of  which  depends  upon  a  con- 
tingency, is  not  negotiable.  Buta  note  in  these  words  "against 
the  25th  Dec,  1819,  or  when  the  house  .1.  M.  has  undertaken 
for  me  is  completed,  I  promise  to  pay,  &c,"  is  net  upon  a  con- 
tingency, because  it  is  payable  at  all  events  by  a  particular  time. 
Goodloe  \.  Taylor,  3  Hawks,  45s. 

6.  Promissory  notes,  made  and  payable  out  oi  this  State,  are 
within  the  acts  oi  1762  and  17<S(i,  rendering  certain  securities! 
negotiable;  ami  those  who  endorse  them  in  this  State  are  charg- 
ed under  the  act  of  1827,  as  sureties,  without  the  notice  required 
by  the  mercantile  law,  of  the  default  of  the  maker.  Hatcher  v. 
McMorine,  4  Dev.,  122.     (See  Rev.  Code.  ch.  13,  sec.  !  and  1".) 

7.  The  law  of  the  place,  where  a  note  is  payable,  determines 
what  is  a  default  by  the  maker;but  the  contract  of  the  endorser 
is  regulated  by  the  law  of  the  country  where  the  endorsement  is 
made.      I  hid. 

8.  A  memorandum,  reciting  the  assigmenl  of  a  promissory 
bote,  and  engaging  to  pay  on  demand  a  stipulated  price  there- 
for, is  ;i  negotiable  security;  anil  proof  that  the  note,  in  consider* 
ation  of  which  it  was  made,  was  a^brgery,  cannot  be  admitted 
against  an  assignee  for  value,  who  received  it  before  its  dis- 
honor.    EUiottv.  Smith&rman,  2  Dev.  and  Pat.,  338. 

9.  A  bond  for  the  payment  of  a  certain  sum,   "  in  bank  stool 


142  BILLS  OF  EXCHANGE,  &c— III.-IV. 

or  lawful  money  of  the  United  States,"  is  not  negotiable  under 
the  act  of  1786,  so  as  to  enable  the  assignee  to  sue  in  his  own 
name,     Alexanders.  Oaks,  2  Dev.  and  Bate 513. 

10.  A  bond  to  pay  money,  and  to  do  something  else,  as  to 
feed  and  clothe  a  slave,  is  not  negotiable.  Knight  v.  Wilmington 
ami  Manchester  Mailvpad  Company,  1  Jones.  ;>57. 

11.  A  bond  or  sealed  note,  made  payable  to  A  B,  or  bearer. 
cannot  pass  unless  delivered  to  tlie  obligee,  and  then  endorsed 
by  him  under  the  statute,  Rev.  Code,  ch.  13,  see.  1.  Gregory  v. 
Dossier,  'i  -bines,  4. 

See  (Justices  of  the  Peace — Of  their  jurisdiction,  judgment 
and  execution,  92.) 

IV.   OF  THIS  ENDORSEMENT  AND  TRANSFER. 

1.  A  negotiable  note  being  in  the  possession  of  the  assignor 
is  evidence  that  he  has  paid  the  assignee  for  it;  and  he  may 
erase  the  endorsement,  and  sue  in  his  own  name.  Dock  v.  Cas- 
well, 1  Hay.,  18,  (24,)  S.  P.  Smith  v.  St.  Lawrence,  Ibid,  174,  (200,) 
Strong  v.  Spear,  Ibid,  214.  (244.) 

2.  The  negotial  >ility  of  a.  bill  or  note  maybe  restrained  by  s]  leeial 
words  in  the  bill  or  note  itself,  or  in  the  endorsement.  Smith  v. 
St.  Lawrence,  1  Hay.,  174,  (200.) 

3.  If  a  negotiable  paper  be  assigned  at  or  before  il  is  due,  and 
no  paymi  n1  is  endorsed,  the  assignee  will  hold  it  discharged  of 
all  payments  that  may  have  been  made  previous  to  the  assign- 
ment; but  if  the  paper  be  assigned  after  it  is  due,  then  all  such 
payments,  of  which  it  might  be  reasonably  presumed  the 
assignee  had  notice^  shall  be  good  against  him.  Black  v.  Bird, 
1  Hay,  273,  (315.) 

4.  If  one  of  two  joint  payees  of  a  note  endorse  on  it,  that  he 
has  transferred  all  Ids  interest  to  the  other,  thai  other  may  main 
tain  an  action  in  his  own  name  tor  the  whole  debt.  Sna  d  v. 
Mitchell  1  Hay.,  289,  (334) 

5.  Where  unnegotiable  papers  are  passed  from  a  debtor  to  his 
creditor,  the  latter,  il  seems,  is  not  liable  for  any  loss  in  the  col- 
lection of  them,  unless  it  can  be  shown  that  the  loss  was  caused 
by  the  □  ol  the  creditor.  Broicn  v.  ('run/,  1  Hay.  318, 
(436,)  S.  P.  Alston  v.  Taylor,  Ibid381,  (439.) 

6.  I'h'  .i  i  ;nment  of  bonds,  mad'  in  Virginia  ami  assignable 
by  the  li  vs  of  that  State  but  not  a,-  ignable  by  our  laws,  must 
be  subject  to  our  laws,  when  the  assignment  is  made  in  this 
State.  '  Alston  v.  Taylor,  1  Hay.,  381s  (439.) 

7.  If  an  endorsement  state  that  the  endorser  will  be  liable  in 
case  the  maker  prove  insolvent,  lie  is  not  liable  upon  proof  that 
tlie  maker  hi  s  taken  the  benefit  of  the  prison  bounds.  Camp- 
bells. Leach,  2  Hay..  233,  (113.) 

8.  Two  p  irtners  may  draw  a  note  payable  to  one  of  them,  and 


BILLS  OF  EXCHANGE,  &c— I\ .  143 

rlii-  assignment  by  him  Tsall  lie  good.     Elalcev.  Wheatoit,  Tar. 
70.  (49,)  S.  C,  2  Hay.,  109,  (267.) 

9.  .\  ii  endorsement  in  full  on  a  negotiable  instrument  may  be 
struck  out  in  the  trial.  Dickinson  v.  Van  Nooden,  1  Car.  L.  R. 
4lJ7,  (109.) 

10.  An  executor  may  assign  the  negotiable  note  of  his  tes- 
tator, without  naming  himself  executor.  Neil  v.  Neicberh,  1 
Murph..  L33. 

11.  If  the  payee  of  a  bill  of  exchange  write  on  it,  "sent  to 
W.  D.,  Esq ,  to  collect"  for  him,  the  payee,  it  is  a  sufficient 
endorsement  to  enable  W.  D.  to  collect  it  by  suit  in  own  name. 
Dnii'  v.  Jacocks,  2  Murph.,  138. 

12.  When  a  note  was  eudorsed  "pay  the  contents  to  W.  or  his 
order,  for  value  received,  with  recourse  to  me  at  any  time  here- 
after without  further  notice-,'  it  was  held  that  a  cause  of  action 
accrual  against  the  endorser,  without  notice,  from  the  return  of 
an  execution  against  the  drawer  by  which  nothing  wis  made; 
but  that  the  terms  of  the  endorsement  did  not  render  the' 
endorser  liable  at  any  indefinite  period  of  time.  Wister  v.  Tate, 
2  Car.  L.  R.-602,  (404.) 

13.  If  two  persons  endorse  a  note,  in  virtue  of  a  mutual 
understanding  with  each  other,  to  lend  their  names  for  the 
accommodation  of  the  maker,  evidence  may  be  left  to  the  jury 
of  such  agr  iement,  and  from  this  a  mutual  liability  will  arise. 
Love  v.  JVaU,  1  Hawks,  313. 

14.  An  endorsement  on  a  bank  note  signifies  nothing  in 
itself,  in  the  way  of  a  contract.  Anderson  v.  itawkins,  3 
Hawks.  568. 

15.  A  oonafide  holder  of  a  bill  or  promissory  note,  in  which 
the  name  of  the  payee  has  not  been  inserted,  has  a  right  to  fill 
up  the  blank  left  for  the  payee's  name  with  that  of  an  endorser; 
and  he  may  subject  the  endorser  upon  a  count  for  his  en  lorsej 
merit,  or  as  the  drawer  of  a  new  bill.  Lawrence  v.  Mabry,  2 
Dev.,  47;i. 

16.  Where  A  and  B  were  eridon  .-rs  oi  a  bill  drawn  for  the 
accommodation  of  C,  and  A  being  the  first  endorser  paid  the 
bill  and  received  the  note  of  C,  endorsed  by  B,  for  one-half  the 
amount,  it  was  held,  that  this  note  was  not  given  for  the  accom- 
modation of  A,  and  that  lie  might  recover  on  B's  endorsement 
Hatcher  v.  McMorine,  3  Lev..  228. 

17.  A  bmid  payable  on  demand,  which  is  assigned  eight  years 
after  its  execution,  is  dishonored,  and  liable  in  the  hands  of  the 
assignee  1  i  all  the  defences  which  the  obligor  had  against  it; 
but  these  defences,  in  order  to  In.-  available  at  law,  must  be  legal 
defem  ood  v.  McNair,  3  Dev.,  231. 

18.  Where  a>  ithing  is  said  or  done  inconsistent  with  that  infer- 
ence, if  two  pi  rsi  ms  put  their  names  on  a  paper,  for  the  ac 
dation  of  a  third,  the}'  are  co-securities,  and  are  liable  without 


144  BILLS  OF  EXCHANGE,  &c— IV, 

respect  to  the  apparent  legal  liabilities  arising  from  the  order  of 
their  names.  Hence,  where  A  procured  the  endorsement  of  B, 
and  afterwards  of  C,  upon  a  note,  which  he  intended  to  get  dis- 
counted at  bank,  it  was  held  that  B  and  C  were  to  be  taken  as 
■co-securities,  although,  by  agreement  between  A  and  B,  the  lat- 
ter was  to  have  part  of  the  proceeds  of  the  note  discounted,  for 
which  he  was  to  give  A  his  own  separate  bond,  and  that  agree- 
ment was  not  made  known  to  C  at  the  time  of  his  endorsement. 
Richards  v.  Simnm,  1  Dev.  and  Bat,,  48. 

19.  An  assignee  of  a  promissory  note,  or  single  I  ><  mil,  who 
takes  it  after  it  is  due,  is  bound  by  any  defence  which  existed 
against  it  and  would  be  available,  if  the  action  were  brought  in 
the  name  of  the  assignor;  and  this  rule  is  not  confined  to  de- 
fences affecting  the  note  or  bond  transaction  itself;  but  extends 
to  a  distinct  and  independent  set  off.  Haywood  v.  McNair,  2 
Dev.  and  Bat.  283. 

20.  An  endorsement  of  a  note  to  a  bona  fide  endorsee,  made 
by  the  payee  in  a  fictitious  name,  in  which  it  was  made  to  him, 
is  valid,  although  the  name  was  assumed  for  a  fraudulent  pur- 
prase.     Elliott  v.  Smitherman,  2  Dev.  and  Bat,  338. 

21.  The  act  of  1827,  making  the  endorsers  of  negotiable  notes 
liable  as  sureties,  applies  in  those  cases  only,  where  not  only  the 
endorsement  in  question,  but  the  antecedent  endorsements,  (not 
expressed  to  be  without  recourse,)  have  been  made  within  this 
State.  IngersoUv,  Long,  4  Dev.  and  Bat.,  293.  (See  Rev.  Code, 
oh.  13,  sea  10. 

22.  The  object  of  this  act  was  not  to  bind  the  endorsor,  as 
though  he  had  signed  the  note  with  the  maker  as  surety,  nor  to 
make  him  liable  to  the  endorsee  if  the  endorsement  were  made 
without  consideration,  nor  to  deprive  him  of  the  protection 
which  the  statute  of  limitations  had  extended  to  endorsers,  but 
simply  to  change  the  engagement,  which  the  law  theretofore 
Implied  from  an  endorsement,  not  expressed  to  be  without  re- 
cours  i,  into  an  engagement  to  pay  the  note  at  all  events,  if  the 
maker  did  not  pay  it.     Ibid. 

23.  To  make  an  endorsement  of  a  bill  special  or  in  full,  it  must 
direct  payment  to  be  made  to  some  particular  person,  firm  or 
corporation.     French  v.  Barney,  1  Ired.,  219. 

24.  A  bill,  once  endorsed  in  blank,  becomes  payable  to  bearer, 
agai  '      the  acceptor,  drawerand  all  prior  endorsers.     Il»',l. 

25.  A  blank  endorsement,  by  the  payee  of  a  billornote,  is  an 
authority  to  a  bona  fide  holder  to  till  it  up  at  any  time,  as  by  an 
indorsement  to  himself,  or  to  any  other  person,  or  to  bearer,  and 
if  not  filled  up,  is  now  considered  as  making  the  bill  payable  to 
bearer.     Hubbard  v.  Williamson,  I  [red..  266; 

2li.  l'>ut  where  there  is  a  first  and  second  endorser  in  blank, 
the  holder  of  the  bill  cannot  support  an  action  against  them 
jointly,  without  tilling  up  the  endorsement  of  the  first  endorser, 


BILLS  Of  EXCHANGE,  &c— IV.  145 

80  as  to  show  an  authority  in  the  second  endorser  to  give  a  title 
to  the  plaintiff  as  holder.  This  endorsement  may  be  filled  up 
as  a  matter  of  course  on  the  trial;  but,  if  not  done,  the  plaintiff 
must  be  nonsuited.     Ibid, 

27.  Where  a  bond  is  payable  to  A,  or  to  A  or  order,  the  legal 
interest  in  it  can  only  be  transferred  by  endorsement.  Fairly  v. 
McLean,  11  Ired.,  158. 

28.  An  assignment  of  a  promissory  note,  to  enable  the  as- 
singnee  to  sue  thereon,  must  be  made  by  the  payee,  and  must 
be  for  the  whole,  and  not  for  a  part  only  of  the  sum  mentioned 
in  the  note.     Martin  v.  Hayes,  Busb.,  423. 

29.  The  endorsement  of  a  note  in  blank  by  a  person,  before 
the  payee  endorses  it,  is  made  regular  by  the  endorsement  of  the 
payee,  and  the  endorsement  may  be  filled  up  as  to  both  endorsers 
on  the  trial  in  the  superior  court,  even  after  an  appeal  from  the 
county  court,  the  trial  being  de,  novo  in  the  superior  court. 
Johnson  v.  Hooker,  2  Jones,  29. 

30.  Where  a  third  person  pays  the  sum  called  for  in  a  promis- 
sory note  and  takes  it  into  his  possession,  it  may  be  a  question  of 
fact  to  be  submitted  to  the  jury  upon  the  testimony,  whether  he 
intended  to  pay  it  off  for  the  accommodation  of  the  maker,  or 
to  purchase  it,  so  as  to  enable  him  to  sue  all  the  parties  on  it. 
Runyon  v.  Chirk  4  Jones,  52. 

31.  An  administrator,  duly  appointed  in  another  State,  can 
any  where  endorse  a  negotiable  paper,  belonging  to  the  assets 
within  bis  jurisdiction  at  the  intestate's  death,  so  as  to  enable 
the  endorsee  to  sue  in  this  State.      Grace  v.  Hannah,  b'  Jones,  94. 

32.  A  sealed  note  or  bond  given  in  this  State,  not  payable  at 
any  particular  place  out  of  the  State,  may  be  endorsed  in  another 
State,  so  as  to  support  an  action  here,  although  there  may  be  no 
statute  law  in  such  State,  making  bonds  negotiable.     Ibid. 

33.  A  bond  given  in  another  State,  where  there  is  no  statute 
making  bonds  negotiable,  may  be  endorsed  here  or  any  where 
else,  where  bonds  are  negotiable,  and  the  endorsee  can  sue  in 
this  State,     Ibid. 

34.  It  is  no  objection  to  the  endorsement  of  a  sealed  note,  that 
the  presumption  of  payment,  from  lapse  of  time,  was  applicable 
to  it  win  n  the  endorsement  was  made.  McLean  v.  McDuuald, 
8  Jones.  383. 

35  An  endorsement  of  a  negotiable  bond  by  the  obligee  in 
the  following  terms,  "A  B,  for  sixty  days,  19th  Nov.,  1858," 
imposes  no  ooligation  on  tin'  endorser  after  the  expiration  of  the 
limited  time.     Johnson  v.  Olive,  1  Winst.,  215. 

Sru  (Contract — (if  the  construction  of  contracts  and  when  an 
action  will  lie,  7;)  (Executors  ami  Administrators — Letters  tes- 
tamentoiy  and  letters  of  administration,  16.) 

10 


146  BILLS  OF  EXCHANGE,  &c— \ '.. 

T.        OF    A    DEMAND. 

1.  A  note  payable  at  the  Bank  of  Gape  Fear  must  be  deraandfl 

at  the  bank,  in' order  to  render  the  endorser  liable.     Sullivan  t 
Mitchell,  1  Car.  L.  E.  482,  (93.) 

2.  Whenever  a  bill  or  note  is  made  payable  at  a  partiouk 
place,  a  demand  at  such  place  is  sufficient,  and  a  personal  one 
not  necessary,  whether  the  maker  live  at  the  same  place  or  at 
different  one.     Ibid. 

3.  A  personal  demand  in  ordinary  cases  is  not  necessary;  it 
sufficient  if  made  at  the  house,  but  if  the  house  be  shut  and  tl 
maker  has  gone  away,  some  endeavor  must  be  made  to  hud  hi 

out.     Ibid.  -li-i 

4.  If,  in  ordinary  cases,  the  maker  has  become  insolvent,  In 
absconded,  or  refuses  to  make  payment,  this  will  be  sufficient  1 
charge  the  endorser  upon  due  notice  of  the  fact.     Ibid.    . 

5.  Where  a  note  was  made  payable  at  the  State  Bank,  it  mu 
be  presented  there  when  it  falls'  due,  otherwise  the  endorse^ 
discharged;  and  that  even  though  the  maker  of  the  noted 
pense  with  such  presentation.  Smith  v.  McLean,  N.  C.  Lefl 
R,  72,  (509.)  .  .  . 

6  Where  the  maker  of  a  note  was  a  physician,  na 

and  dwelling  house-  in  different  parts  of  the  town  and  when  t 
endorser,  on  the  note  becoming  due,  informed  the  holder  tl 
the  maker  was  fifty  miles  out  of  town  and  would  pay  on  | 
return,  it  was  held,  that  a  demand  at  the  shop  was  sufficient,  wil 
out  the  making  of  one  at  the  dwelling  house  also.  Field* 
Mallei 7,  3  Hawks,  465.  . 

7  Where  the  maker  o£  a  promissory  no  unan,  nm 
out  any  domicil  in  the  State,  who  goes  on  a  voyage  about  t 
time  the  note  falls  due,  no  demand  on  him  is  necessary  in  ore 
to  charge  the  endorser.     Moorev.  Coffield,  1  Dev.,  247. 

8  There  is  no  precise  time  in  which  a  note  payable 

is  to  be  deemed  dishonored;  but  it  must  depend  on  the  circj 
stances  of  the  case.     Elliot  v.  Smitherman,  2  !  >ev.  and  Bat,J 

9  [nan  action  against  the  endorser  oi  a  promissory  note 
bond,  since  the  act  of  1827  making  endorsers  oi  promisi 
notes  sureties,  it  is  unnecessary  testate  m  the  declaration 
prove  on  the  trial,  any  demand  on  the  maker  oi  tn<  note 
obligor  in  the  bond,  and  notice  of  non-payment  to  the  endoj 
WiMams  v.  Irwin,  £  Dev.  and  Bat  74,  S.  P.  Dhmulvs  v.  )\  ru 
3  Dev.  and  Bat.,  78.     (See  Rev.  Code,  ch.  13,  sec.  10.)  I 

10.  However  it  may  be,  as  to  notes  payable  on  demand,  whet 
or  not  they  are  considered  as  overdue  until  demand  made,  i 
certain  that  a  note,  payable  "at  sight,"  or  "when  presented, 
not  due  until  it  is  presented.      Ormond  v.  Moi/e,  11  Lred.,  DJ 

11  The  maker  of  a  promissory  note,  made  payable  on  aem 
at  a  particular  place,  is  not  bound  to  pay  it  until  i1  is  preset 


BILLS  OF  EXCHANGE,  &c—  V.-VI.-VII.  14V 

-T  the  place  where  it  is  expressed  to  be  payable.  And  there  is 
no  ground  for  a  distinction  upon  this  point,  between  notes  made 
payable  by  a  natural  person  and  those  made  by  a  corporation. 
Nor  can  such  be  used  as  a  set  off  or  offered  as  a  payment  to  the 
maker,  unless  so  presented.  The  Bank  of  the  State  v.  The  Bank 
of  Cape  Fear,  13  lred.,  75. 

12.  If  a,  note  lie  payable  at  a  particular  time  and  place,  a  de- 
mand  at  such  time  and  place  nei  d  not  be  averred  and  proved,  in 

■an  action  by  the  holder  against  the  maker;  but  a  failure  to  make 
such  demand  may  be  used  as  a  defence  if  the  money  were  ready 
at  the  time  and  place.     Nichols  v.  Pool,  2  Jones,  23. 

13.  The  act  of  1*27,  Rev.  Stat.,  oh.  13,  sec.  11,  makes  an 
endorser  liable  to  the  holder  of  a  note  in  the.  same  way  that  the 
maker  is  liable;  and  when  the  note  is  payable  at  a  particular 
time  and  place,  the  demand  at  such  time  and  place  need  not  be 
averred  cmdprovek,  in  an  Action  by  the  holder  against  such  endor- 
ser, but  a  failure  to  make  such  demand  may  be  used  as  a  defence,  if 
tli>_'  money  were  ready  at  the  time  and  place.  Johnsonv.  Hooker, 
2  Jones,  2!).     (Sec  Rev.  rode,  eh.  13,  sec.  10.) 

14.  Where  the  protest  of  a  notary  public  stated  that  he  pre- 
sented a  bill,  which  purported  to  be  drawn  on  a  firm,  to   \.  one 
of  the  members  thereof   it  was  held  to  be  e\  idence  shat   \ 
member  of  that  linn  and  that  the  presentment  was  prorperly 
made.     Elliott  v    White,  6  .'ones,  98. 

See  (Interest  7.) 

TO.       PAYS   OF    GRACE. 

1.  Lars  .if  grace  are  not  to  be  allowed,  as  between  the  origi- 
nal parties  to  a  sealed  note,  notwithstanding^  has  been  made 
negotiable,  by  statute.     Jarvis  v.  McMain,  3  Hawks,  In 

2.  A  scaled  note  is  not  entitled  to  days  of  grace  as  between 
endorsee  and  endorser.     Fields  v.  MaUett,  3  Hawks,  465. 

T.       NOTICE    OF    NON-ACCEPTANCE    AND    NON-PAYMENT. 

1.  Notice  need  not  lie  given  to  the  drawer  of  a  bill,  if  he  have 

no   effects   in   the-   hands  of  the  drawee.     v  Stanton   1 

Dev.,  271,  (312.)  ' 

2.  The  receipt  of  part  of  the  money  from  the  drawee,  does  not 
discharge  the  drawer;  and  as  to  the  residue,  notice  isonl;)  neces- 
sary, when  it  would  have  been  so,  if  the  whole  had  been 'unpaid 
Ibid,  271.  L 

3.  Hie  endorsee  of  a.  bill  of  exchange  must  make  due  present- 
ment of  tin-  bill  for  acceptance  and.  then  tor  payment,  and  if  if 
lie  not  accepted,  or  not-.paid,  he  must  give  due  notice  :'  reof  to 
the  endorser.  The  endorsee  cannot  support  an  action,  unless  he 
perform  all  parts  of  this  undertaking;  he  must  prove  the  giving 


148  BILLS  OF  EXCHANGE,  &c— VII. 

of  notice,  or,  in  case  of  the  non-acceptance  of  a  bill,  prove  that 
there  were  no  effects  of  the  drawer  in  the  drawee's  hands;  that 
is  if  he  mean  to  resort  to  the  drawer.  But  this  proof  in  excuse 
of  not  giving  notice  eaa  only  apply  to  the  case  ot  a  bill  of  ex- 
change not  accepted;  it  does  not  apply  to  the  case  oi  a  bill  ot  ex- 
change accepted,  nor  to  a  promissory  note.  It  the  maker  ot  the 
note  be  insolvent,  the  endorsee  must  still  give  notice  to  the  en- 
dorser. Pans  Y.Kelly,  2  Hay,  45,  (204.)  S.  P.  Plnmmer  v. 
Christmas,  Ibid,  107,  (265.)  S.  C  Tay.  (57,  (46.)  (Endorsers 
of  negotiable  notes  are  now  made  liable  as  sureties,  and  no  no- 
tice need  be  given  to  them.     Ptev.  Code,  ch.  13,  sec.  10.) 

4  As  to  what  shall  be  deemed  sufficient  notice,  the  endorser 
must  have  notice  from  the  endorsee,  that  he  cannot  obtain  pay- 
ment, and  that  he  looks  to  him  for  it,     Ibid. 

5  The  party  shall  give  notice  as  soon  as  he  conveniently  may, 
all  circumstances  considered,  the  court  to  decide  what  is  reason- 

6  What  shal'be  deemed  reasonable  notice  to  the  endorser,  of 
non-payment  by  the  maker,  must  depend  on  the  local  situation, 
and  the  respective  occupation  and  pursuits  of  the  parties.  Where 
they  lived  in  the  same  town,  a  delay  from  the  10th  Nov.  to  the 
26th  Jan,  was  deemed  too'  long  for  the  giving  of  such  notice. 
Londonv.  Howard,  2  Hay,,  302,  <49i()  and  332,  (506.) 

7  Notice  to  an  endorser  of  the  non-payment  .ot  a  note  should 
he  given  by  the  holder,  or  by  some  person  authorized  by  him. 
It  should  also  intimate  to  the  endorser,  that  he  is  looked  to  for 
payment.     Brower  v.  Wboten,  N.  C.  Term,  R,  70,  (507.) 

8.  Whenever  a  person  endorses  a  note  for  the  accommodation 
of  the  maker,  he  is  entitled  to  notice  of  non-payment  Smith  v. 
McLean,  N.  C,  Term,  E.  72,  '(509.) 

9  An  endorser  is  entitled  to  reasonable  notice  of  the  non-pay 
mentof  a  note  by  the  maker;  but,  if  after  such  a  lapse  of  time, 
as  would  have  exonerated  him,  he  make  a  promise  to  pay,  with 
full  knowledge  that  by  law  he  is  not  liable,  it  amounts  to? 
waiver  of  a  want  of  notice.     Gardiner  v.  Jones,  2  Murph.,  429 

10  A  notice  of  the  non-payment  by  the  drawer,  of  a  no« 
made  negotiable  and  payable  at  a  bank  in  a  certain  town,  is  noj 
sufficient,  if  not  given  to  the  endorser  liVing  m  the  same  tow* 
until  six  days  afterwards.     State  Bank  v.  Smith,  3  Mmrph,  70. 

11  The  drawer  of  a  bill  is  entitled  to  notice  of  its  dishonor; 
though  the  drawee  be  not  indebted  to  him,  either  when  the  bil 
was  drawn  or  fell  due,  provided  the  drawer  had  reasonably 
ground  to  believe  that  it  would  be  honored;  and  a  written  an 
thority  from  the  drawee  to  the  drawer  is  a  sufficient  ground 
Austin  v.  Rodman,  1  Hawks,  194  ■■    . >i 

12  If  a  bili  be  payable  after  sight,  it  must  be  presented  with 
in  reasonable  time  for  acceptance,  and  immediate  notice  of  nor 
acceptance  given  to  the  drawer;  and  it  is  not  sufficient  to  giv 


BILLS  OF  EXCHANGE,  &c— VII.  149 

notice  of  non-acceptance  and  non-payment  together,  after  the 
day  of  payment  has  passed.  If  in  such  case  the  drawer  be  dis- 
charged, by  the  laches  of  the  holder,  from  his  liability  on  the 
bill  itself,  he  will  not  be  liable  on  a  count  for  money  had  and  re- 
ceived.    Ibid. 

13.  A  demand  of  the  maker  of  the  note,  and  notice  of  non- 
payment given  to  the  endorser,  in  a  reasonable  time,  are  neces- 
sary to  charge  the  endorser;  and  this  reasonable  time  must  de- 
pend on  circumstances.  Four  months  delay,  where  the  parties 
all  live  in  the  same  town,  is  unreasonable.  Yancij  v.  Litllejohn,  2 
Hawks,  525. 

14.  The  notice  from  an  endorsee  to  an  endorser  is  good,  if  it 
be  sufficient  to  put  him  upon  enquiry ;  it  may  be  oral  or  in 
writing,  it  may  be  read  from  a  memorandum  or  letter,  either 
written  or  printed,  signed  or  unsigned,  bearing  the  name  of  any 
Mie  or  no  one,  for  the  person  giving  the  notice  adopts  it  as  his 
own ;  and  any  person,  through  whose  hands  a  bill  or  note  has 
passed,  may  give  notice  to  the  drawer,  or  a  prior  endorser,  of  the 
dishonor  of  a  bill,  although  it  may  not  have  been  by  him  at  that 
time  taken  up,  and  such  notice  may  be  given  without  his  having 
then  iii  his  hands  the  protest ;  it  is  sufficient  (if  a  protest  be  ne- 
3essary  in  the  case,)  that  there  is  one  in  fact.  Bank  of  Cape 
Fear  v.  Seawell,  2  Hawks,  J)60. 

15.  A  notice  to  a  distant  endorser  joust  ordinarily  be  sent  to 
his  nearest  post  office,  but  this  rule  may  be  dispensed  with  when 
it  is  shown  to  have  been  sent  to  the  place  where  he  would  get 
the  earliest  intelligence.  Bank  of  the  United  States  v.  Lane-,  3 
[lawks,  453. 

16.  The  rule  as  to  notice  to  endorsers  varies  with  the  pursuits 
if  the  parties,  the  same  strictness  not  being  required  between 
farmers  living  in  the  country  as  between  merchants  in  towns; 
ind  in  the  first  case,  what  is  clue  diligence  must  be  left  to  the 
ury  under  the  direction  of  the  court.  Brown  v.  Johnson,  1 
Dev.,  203. 

17.  The  contents  of  a  letter,  directed  to  an  endorser  or  drawer 
i>f  a  bill  of  exchange,  at  his  residence,  giving  him  notice  of  its 
dishonor,  may  be  proved  by  parol  without  notice  to  produce  the 
ftriginal.     Faribault  v.  El;/,  2  Dev.,  67. 

18.  What  is  reasonable  notice  to  an  endorser  depends  on  the 
local  situation  and  respective  occupation  and  pursuits  of  the 
parties,  and  is  to  be  judged  of  by  the  court.  And  where  the 
parties  resided  thirty  miles  apart,  the  lapse  of  forty-seven  days, 
from  the  time  of  the  endorsement  to  the  service  of  notice  on  the 
endorser,  was  hald  too  long.     Johnston  v.  McGinn,  4  Dev.,  277. 

19.  Notice  1  iv  the  holder,  to  the  drawer  of  a  bill  of  exchange,  of 
a.  demand  on  the  drawee  and  a  protest  for  non-acceptance  or  non- 

Eayment,  is  not  necessary,  when  the  drawer  had  no  funds  in  the 
yiu.ls  pf  i]u-  drawl;-.  unleBS  t]ic  drawer  had  reasonable  grounds 


150  BILLS  OF  EXCHANGE,  Ac— VII. 

to  believe  that  his  bill  would  be  honored.     Spear  v.  Atkinson,  i ' 
Ired.,  262. 

20.  Notice  of  the  dishonor  of  a  bill  is  required  to  enable  the 
drawer  or  endorser  to  withdraw  his  effects  from  the  drawee. 
Ibid. 

21.  Protest  of  an  order,  or  inland  bill  of  exchange,  is  not  ne- 
cessary to  enable  the  holder  to  recover  principal  and  interest, 
notice  in  due  time  of  non-acceptance  or  non-payment  being  all 
that  is  required  for  that  purpose.     Hiibbardv.  Troy,  2  Ired.,  134 

22.  It  is  generally  held  that  the  holder  must  give  notice  of 
non-acceptance  or  non-payment  on  the  no  d  day,  or  by  the  next 
post,  when  the  parties  live  in  different  places.  And  a  delay  in 
giving  notice  from  the  10th  to  the  21th  of  March  was  held  to 
be  unreasonable  and  to  discharge  the  drawer.     Ibid. 

23.  When  the  drawer  dates  a  bill  at  a  particular  place, 
as  for  instance,  "Danville,"  notice  to  him  of  the  dishonor 
of  the  bill,  directed  to  him  at  that  place,  may  be  sufficient.  But 
it  is  otherwise  as  to  the  endorser,. who  does  not  designate  in  his 
endorsement  his  place  of  residence,  either  generally  or  specially. 
Denny  v.  Painter,  5  Ired.,  610. 

24.  The  general  rule  is,  that  notice  of  the  dishonor  of  a  bill 
of  exchange  or  promissory  note  endorsed,  where  the  parties  live 
in  different  places,  must  be  sent  by  the  next  post,  directed  to 
the  place  of  the  party's  residence;  but,  if  the  holders  of  bill  <>r 
note  are  exempted  by  law  on  account  of  any  particular  circum- 
stances, from  tire  operation  of  this  rule,  they  must  show  the  cir- 
cumstances.    Ibid. 

25.  Although,  at  the  time  of  the  endorsement  of  a  note,  the 
endorsers  had  reason  to  believe,  and  did  believe,  that  the  note 
would  not  be  paid  by  the  maker,  this  will  not  dispense  with  the 
necessity  of  due  notice.     Ibid. 

26.  A  drawer  of  a  bill,  who  has  no  funds  in  the  hands  of  the 
drawee,  is  liable  without  notice,  on  the  ground  of  hand.  But  if 
a  bill  be  drawn  for  the  accommodation  of  the  acceptor,  or  a  note 
endorsed  for  that  of  the  maker,  then  the  drawer  of  the  hill  or 
endorser  of  the  note  is  entitled  to  notice,  though  the  acceptor 
or  maker  be  insolvent.     J  bid. 

27.  If  a  note  be  made  for  the  accommodation  of  the  payee 
and  he  receives  the  money  for  it,  he  is  not  entitled  to  notice. 
So,  if  a  maker  of  a  note  place  effects  in  the  hands  of  the  end<  irsi  i 
to  meet  the  note,  the  latter  is  not  entitled  to  notice.     Ibid. 

28.  In  every  case  in  which  notice  is  dispensed  with,  then 
must  either  have  been  a  fraud  on  the  world  in  making  the  secu- 
rity, or  it  would  be  a  fraud  on  the  party.  wh.>,  according  to  the 
form  of  the  instrument,  is  legally  bound  before  him  who  insists 
on  notice,  but  where  in  reality  and  according  to  their  actual  lia- 
bilities, as  between  themselves,  the  relation  of  the  parties  is 
reversed,  and  he,  who  appeared  to  be  primarily  liable,  was  sc, 


BILLS  OF  EXCHANGE,  Arc— \  II  151 

rsnly  secondarily,    and  the   other  party  was  the  real  debtor. 
lhld. 

29.  When  the  maker  of  a  note  has  secured  all  his  property  for 
the  indemnity  of  his  endorser,  it  is  not  an  implication  of  law 
from  that  circumstance,  that  the  endorser  has  agreed  to  take  up 
the  note,  and  therefore  dispensed  with  the  legal  notice;  and  this 
is  more  especially  the  case  where  the  creditor  is.  by  means  of  a 
trustee,  a  parly  to  the  deed  of  indemnity,  and  has  a  right  to 
enforce  it  for  the  payment  of  his  debt,  ami  the  endorser  has  not 
the  absolute  control  over  it,  for  his  own  interest.     Ibid. 

30.  The  acceptance  by  an  endorser  of  an  assignment  to  a  third 
person,  whetherthe  maker  be  solvent  or  insolvent,  or  the  assign- 
ment be  partial  or  total,  as  an  indemnity  against  existing  or 
future  endorsements  of  notes,  given  in  renewal  as  the  maker 
may  require,  in  order  to  keep  his  paper  from  being  dishonored, 
affords  no  presumption  in  law,  that  the  endorser  is  under  an  ob- 
ligation to  take  up  (he  notes,  when  the  maker  shall  fail  to  offer 
renewals  and  pay  discounts;  and  such  an  obligation  is  the  true 
test  of  the  endorser's  being  entitled  to  notice.     Ibid. 

31.  An  officer  of  a  bank  in  the  town  of  Washington,  to  whom 
a,  notice  of  a  protested  bill  of  exchange  was  sent,  testified  that 
dii  the  day  after  he  received  it,  to  wit.  on  the  10th  of  April, 
1849,  he  sent  it  by  mail  to  Newbern  directed  to  the  defendant; 
that  he.  did  not  know  where  the  defendant  resided,  and  that 
after  learning  from  a  gentleman  of  Washington  who  had  mar- 
ried a  lady  of  Newbern,  that  he  did  not  know,  he  desisted  from 
further  enquiry;  it  appeared  also,  that  in  l.s4.r>  the  defendant 
purchased  a  house  and  lot  in  Newbern,  and  after  that  time  spent 
a  portion  of  each  year  in  that  place,  going  from  his  house  about 
the  latter  part  of  June,  ,and  returning  in  October,  but  that 
in  1849  he  did  not  leave  home  until  the  6th  of  July.  With  this 
exception,  the  defendant  had  lived,  from  his  youth  up,  on  his 
plantation  some  two  miles  distant  from  the  county  seat  of  <  Mis- 
low,  where  was  the  post  office  to  which  his  papers  and  letters 
were  addressed.  It  further  appeared,  that  during  the  years  the 
defendant  spent  the  sickly  season  in  Newbern,  several  letters 
postmarked  "New  York,"  came  to  him,  and  were  delivered  to 
persons  calling  for  them  in  his  name,  and  that  there  was  a  tri- 
weekly mail  between  Newbern  and  Washington;  aaA.it  was  held 
that  tie-  testimony  failed  to  showthat  Newbern  was  the  place 
of  the  defendant's  residence  or  business,  at  .which  he  usually 
received  his  letters  and  papers,  and  that  there  was  not  sufficient 
diligence  used  by  the  plainttff  in  sending  notice  of  the  dishonor 
of  the  bill  to  the  proper  place,  to  bind  the  defendant  as  endcr- 
boi.     fiunyon  v.  Montfort,  Busb.  371. 

32.  An  order  for  goods  is  not  a  bill  of  exchange,  and  the  doc- 
trine of  notice  does  not  apply  to  it.  Nissen  v.  Tucker,  1  Jones, 
176,  U  ' 


152  BILLS  OF  EXCHANGE,  &c— VII.-VIII. 

33.  To  subject  the  endorser  of  a  bill  of  exchange,  where  the 
parties  reside  in  the  same  town  or  city,  the  general  rule  is  that 
notice  of  nonpayment  by  the  acceptor  must  be  given  to  the 
endorser  personally,  or  by  a  written  notice  left  at  his  residence 
or  place  of  business;  and,  in  such  case,  a  notice  put  into  the 
post  office  is  not  sufficient.     Costin  v.  Rankin,  3  Jones,  387. 

VIII.      REMEDY    ON   A     BILL    OK    NOTE DECLARATION,    PLEADINGS    AND    EVI- 
DENCE. 

1.  In  an  action  on  a  foreign  bill  of  exchange  protested  for 
non  acceptance,  it  was  held,  that  the  defendant,  by  suffering  a 
default,  had  admitted  the  declaration  to  the  amount  of  the  bill, 
but  that  the  plaintiff  must  prove  notice  to  the  defendant  of  the 
dishonor  of  the  bill,  in  order  to  entitle  himself  to  extraordinary 
interest  and  damages.     Bettner  v. ,  Max.  36,  (25.) 

2.  The  giving  a  note  is  no  extinguishment  of  a  prior  cause  of 
action ;  and  where  there  is  a  count  upon  the  note,  as  well  as  the 
general  counts,  a  recovery  may  be  had  upon  the  general  counts, 
though  the  note  is  alleged  to  be  lost.  Kiddie  v.  Debrutz,  1  Hay., 
420,  ^485.) 

3.  The  general  issue,  to  an  action  on  an  assigned  bond,  denies 
the  assignment.     — v.  Wright,  2  Hay.,  150,  (327.) 

4.  In  declaring  on  a  note  drawn  in  South  Carolina,  the  declar- 
ation should  aver  that  by  the  law  of  that  State  such  note  was 
negotiable,  and  that  it  was  assigned  to  the  assignee  who  sues; 
such  averments  being  material  and  necessary  to  be  proved.  Rut- 
ledge  v.  Read,  2  Hay.,  242,  (428.) 

5.  A  note  not  negotiable  within  the  statute  cannot  be  declared 
on ;  the  consideration  must  be  stated  and  proved,  and  the  note 
can  only  be  used  as  evidence  to  the  jury.  Stamps  v.  Graves,  4 
Hawks,  102. 

6.  Where  a  note  is  made  payable  on  a  contingency,  which  is 
of  such  a  kind  as  shows  no  benefit  to  the  one,  nor  injury  to  the 
other  party,  the  note  itself  is  no  evidence  of  a  consideration; 
but  proof  of  a  consideration  must  be  given  independent  of  the 
note.     Ibid. 

7.  A  bill  of  exchange,  expressed  to  be  for  value,  is  prima  facie 
evidence  of  an  executed  consideration,  and,  without  proof  of  its 
being  drawn  for  the  accommodation  of  the  payee,  will  not  sup- 
port an  action  by  the  drawer  against  the  payee,  or  a  set  off  in 
favor  of  the  former  against  an  action  by  the  latter.  Cox  v. 
Slack,  2  Dev.,  8. 

8.  In  an  action  upon  a  promissory  note,  a  total  failure  of  con- 
sideration may  be  given  in  evidence  to  defeat  it,  when  the  suit 
is  between  the  original  parties;  but  it  is  otherwise  where  there 
is  only  a  partial  failure,  as  that  can  be  remedied  only  by  a  dis. 
tinct  suit.      Washburn  v.  Picot,  3  Dev.,  390. 


BILLS  OF  EXCHANGE,  &c— VIII.-IX.  153 

9.  A  promissory  note  for  four  hundred  and  forty-seven,  may 
he  declared  on  as  a  note  for  four  hundred  and  forty-seven  "dol- 
lars," the  word  "dollars"  being  properly  supplied  by  construc- 
tion.    Stephens  v.  Smith,  4  Dev.,  292. 

10.  The  acceptance  of  an  order  is  admission  by  the  acceptor 
of  having  funds  in  his  hands  belonging  to  the  drawer.  Jordan 
v.  Tarkington,  4  Dev.,  357. 

11.  Where  a  bill  has  been  drawn  by  A  upon  B,  in  favor  of  C, 
and  is  protested  for  nonpayment,  the  acceptance  by  C  of  another 
bill  from  B,  unless  it  is  expressly  understood  that  this  is  to  be  a 
satisfaction  of  the  debt  due  from  A,  does  not  debar  C  of  his 
action  against  A  upon  the  original  bill,  provided  the  bill  of  B 
is  dishonored;  but  it  is  necessary  for  C,  in  his  suit  on  the  origi- 
nal bill,  to  show  that  he  used  proper  diligence  on  the  second  bill 
and  could  not  obtain  payment.      Gordon  v.  Price,  10  Ired.,  385. 

12.  In  an  action  at  law  upon  a  negotiable  instrument,  alleged 
to  be  lost,  the  loss  cannot  be  proved  by  the  party's  own  oath, 
even  though  the  amount  of  the  bill  or  note  be  less  than  $50. 
Chancy  v.  Baldwin,  1  Jones,  78. 

13.  In  an  action  at  law  upon  -a  negotiable  paper  alleged  to  be 
lost,  the  affidavit  of  the  party  cannot  be  admitted  that  he  had 
not  negotiated  the  paper.  In  equity  the  loss  of  a  note  or  bond 
may  be  proved  by  the  oath  of  the  party,  to  give  the  court  juris- 
diction; and  his  oath  of  the  loss  is  admissible  in  both  courts  to 
let  in  secondary  evidence,  of  the  contents.  Grant  v.  Eeid,  1 
Jones,  512. 

14.  The  act  of  1827,  Rev.  Stat,  ch.  13,  sec.  11,  making  endor- 
sers of  notes  liable  as  sureties,  does  not  prevent  the  endorser 
who  pays  it  ojf,  from  striking  out  the  endorsement  and  suing 
the  maker  on  it  in  his  own  name,  Nichols  v.  Pool,  2  Jones,  23. 
,(See  Rev.  Code,  ch.  13,  sec.  10.) 

15.  If  the  holder  of  a  note  sue  the  payee  as  endorser,  and  also 
a  subsequent  endorser  at  the  same  time,  and  then  strike  out  the 
name  of  the  payee  from  the  writ,  it  will  not  affect  his  right  to 
recover  against  the  other  party;  nor  will  it  prevent  the  plaintiff 
from  afterwards  suing  the  party  whose  name  was  so  stricken 
out.     Johnson  v.  Hooker,  2  Jones,  29. 

IX.       LIABILITY    OF    PARTIES,    AND    HOW    DISCHARGED. 

1.  An  assignee,  two  years  after  the  assignment,  sued  the 
drawer  and  took  him  in  execution  by  a  ca.  so,  from  which  he 
was  discharged  under  the  insolvent  act,  held,  that  he  could  not 
have  any  recourse  on  the  assignor;  first,  because  of  the  long  de- 
lay and,  secondly,  bacause  of  the  ca-  sa.,\  and  the  discharge 
therefrom.      Greenlee  v.  Young,  1  Hay.  3,  (5.) 

2.  If  an  endorsee  keep  the  paper  so  long  as  to  make  it  his  own, 


154  BILLS  OF  EXCHANGE,  &c— IX. 

ex  necessitate  it  must  be  a  discharge  of  the  precedent  debt. 
though  not  so  originally.     Pons  v.  Kelly,  2  Hay.,  45,  (204.) 

3.  Where  an  agent  of  another  took  a  promissory  note  to  secure 
a  debt,  and  neglected  at  the  time  to  witness  its  execution,  but 
afterwards  on  another  day  subscribed  as  a  witness,  held  to  be  a 
material  alteration  of  the' note.  Allen  v.  Jordan,  2  Hay,  132, 
(298.)     (Overruled  by  Mackwell  v.  Lane,  4  Dev.  and  Bat-  113.) 

4.  Where  A  had  money  in  the  hands  of  B,  who  couldnot  pay 
it,  but  offered  a  hill  on  New  York,  which  A  did  not  want,  but 
finding  that  C  was  willing  to  take  it  received  the  money  from 
him,  and  ('  took  the  hill  of  exchange  from  B,  held  that,  upon 
the  protest  of  this  hill  and  B's  failure,  A  was  not  liable  to  C  for 
the  money  paid  for  the  bill,  as  he  had  neither  made  himseli 
endorser,  nor  had  promised  to  be  responsible.  Willcinsv.  Me- 
Kenzie,  2  Hay.  277,  (45(5,)  S.  C.  Conf.  Rep.  448,.  (507.) 

5.  The  assignor  of  a  bond  is  not  released  by  the  discharge  of 
the  obligor  on  a  ea.sa.,  under  the  insolvent  debtor's  law.  Green 
v.  BlacUedge,  2  Hay,  10.2,  (262,)  S.  C.  Tay.  122,  (73.) 

6.  If  the  attorney, employed  by  the  owner  of  a  note  to  sue  on; 
it,  strike  out  an  endorsement,  it  discharges  the  endorser.  Smith 
v.  McLean,  N.  C,  Term,  R.  72,  (509.) 

7.  Y\  here  the  holder  of  a  note  procured  a  confession  of  judg-- 
ment  from  the  maker,  and  granted  him  a  cessat  executio  for  six 
months,  when,  had  he  regularly  brought  suit  to  the  term  at 
which  the  judgment  was  confessed,  the  execution  would  have 
been  delayed  but  three  months,  it  was  held  that,  by  this  conduct, 
the  holder  virtually  made  a  new  contract  with  the  maker,  by 
which  the  endorser  was  exonerated  from  liability.  Yaney  v. 
Idttlejohn,2  J  laws,  525. 

8.  If  an  endorser,  discharged  by  the  laches  of  the  holder  but 
ignorant  of  such  laches,  promise  to  pay,  he  is  not  bound  thereby, 
although  it  appear  that  on  a  sale  of  real  estate  by  the  endorser 
to  the  maker,  a  note  and  a  deed  of  trust  were  taken  to  secure 
the  purchase  money,  anil  the  deed  was  still  held  by  the  endorser 
at  the  time  of  the  promise.      Moore  v.  Ooffidd,  1  Dev.,  247. 

9.  Mere  delay  of  a  holder  in  collectrng-a  note  will  not  dis- 
charge an  endorser,  who  has  been  duly  fixed  with  notice.  But,  if 
the  holder,  by  a  new  contract,  varies  the  obligation  of  the  maker, 
and  prevents  the  endorser  from  having  immediate  recourse  to 
him  upon  paying  the  debt  and  taking  an  assignment  of  the 
security,  he  discharges  the  endorser.  State  Bunk  x.  Wilson^  1 
Dev.,  484. 

10.  At  law  an  endorser  has  the  same  right  to  an  assignment 
of  a  judgment  against  the  maker,  on  a  note,  that  he  has  to  the 
note  itself.     Ibid. 

11.  The  holder  of  a  note,  payable  in  specific  articles,  is  not 
bound  to  receive  them  at  a  place  or  on  a  day  different  from  thai.: 
appointed  in  the  note.     Erwin  v.  Caul;  2  Dev.  18:1 


BILLS  OF  EXCHANGE,  Ac— IX.  155 

!•_'.  If  .such  a  note  be  assigned  as  collateral  security  for  a 
bond,  and  the  assignee  make  a  new  contract  with  the  maker  of 
fhe  note,  it  becomes  his  own  and  the  parties  to  the  bond  are 
discharged:    Ibid. 

13.  A  note  payable  to  A  B,  "cashier,  or  order"  and  "negotiable 
and  payable"  at  a  particular  bank,  is  payable  to  A  B  individ- 
ually, ^he/word  "cashier"  being  only  descriptive  of  the  person: 
and' the  expiration  of  the  charter  of  the  hank,  at  which  the  note 
is' negotiable  and  payable,  will  not,  at  law,  affect  his  right  to 
recover.     Horah  v.  Long,  4  Dev.  and  Bat.,  275. 

14  A  negotiable  instrument  payable  to  1!  G,  "  agent  of  his 
assignees,  or  order,"  cannot  lie  sued  upon  at  law,  in  the  name  of 
the  persons,  who  were  assignees  of  R  G  by  a  deed  executed 
before  the  date  of  the  negotiable  security,  without  his  endorse- 
ment.    Grist  v.  Backhouse,  4  Dev.  and  Bat.,  362. 

15.  Where  A,  the  payee  of  a  bill  of  exchange,  endorsed  it  to 
B,  and  B  to  C,  and  C  then  endorsed  it  "-without  recourse  to  him," 
but  not.  saying  to  whom,  it  then  became  an  endorsement  in 
blank,  and  the  bill  became  payable  to  bearer;  and  notwithstand- 
ing D  ami  E  afterwards  endorsed  it  in  full  or  specially,  yet  when 
it  came  again  to  C  by  delivery,  he  had  a  right  to  demand  pay- 
ment of  the  bill  from  any  prior  endorser.  French  v.  Barm  y,  1 
Ired.,  219. 

16.  C,  being  the  holder  of  the  bill,  the  law  implies,  until  some- 
thing be  shown  to  the  contrary,  that  he  gave  value  for  it,  or 
came  fairly  and  legally  by  it.     Ibid. 

17.  When  a  bill  of  exchange  made  payable  to  a  third  person 
is  protested  and  taken  up  by  the  drawer,  the  latter  cannot  again 
put  it  in  circulation.     Price  v.  Sharp,  2  Ired.,  417. 

18.  A  person  cannot  negotiate  a  paper,  when  by  so  doing  he 
would  render  responsible  on  it  another  person,  from  whom  he 
had  taken  it  up  under  a  prior  respi  msibifity.  But  a  person,  who 
takes  up  a  negotiable  paper  once  due  to  himself,  may  again  put 
it  in  circulation,  provided  that  in  so  doing  he  exposes  no  person 
to  a  prejudice  but  himself,  or  those  who  are  justly  and  legally 
liable  on  the  paper  before  him.    Ibid. 

19.  When  a  bill  of  exchange  payable  to  A  is  taken  up  by  the 
drawer  and  the  endorsement  of  A  stricken  out,  it  becomes  dead 
to  all  intents  and  purposes,  as  a  negotiable  instrument.     Ibid. 

20.  Where,  upon  the  dishonor  of  a  hill  of  exchange  or  pro- 
missory note,  the  endorsee  has  neglected  to  give  the  proper 
notice,  the  drawer  or  endorser  of  the  bill  or  endorser  of  the  note 
will  still  he  liable;  if.  after  a  knowledge  of  all  the  facts  which  in 
law  would  have  discharged  him,  he  promises  to  pay  the  bill  or 
note.     Moore  v.  Tuch  r,  '■'>  Ired.,  347. 

21.  A  gave  his  promissory,  note  to  the  Bank  of  the  State,  to 
which  B  and  C  were  sureties.  When  the  note  became  due,  A 
offered  to  discharge  it  by  a  draft  on  New  York,  which  the  bank 


156  BILLS  OF  EXCHANGE,  <fca— IX. 

declined,  but  offered  to  send  on  the  draft  for  collection  and,  if  it 
were  paid  at  maturity,  to  apply  the  proceeds  to  the  discharge  of 
the  note.  Afterwards  the  cashier  of'  the  bank,  by  mistake,  sup- 
posing the  draft  to  be  paid,  cancelled  the  note  and  delivered  it 
up  to  A,  the  principal.  It  was  soon  after  ascertained  that  the 
draft  had  been  protested,  and  was  never  paid ;  it  was  held  that, 
under  these  circumstances,  the  bank  was  entitled  to  recover, 
from  both  the  principal  and  his  sureties,  the  amount  of  the  note 
so  cancelled  and  delivered  up.     Dewey  v.  Bowers,  4  Ired.,  538. 

22.  A  drew  a  bill,  which  was  endorsed  by  B,  at  the  request  ot 
the  drawee  and  for  his  accommodation,  and  was  accepted  by  the 
drawee.  A,  being  desirous  to  have  the  bill  discounted  at  bank, 
requested  C  to  endorse  the  bill  as  it  then  stood;  it  was  held  that, 
on  the  dishonor  of  the  bill  and  its  paymEnt  by  C,  he  had  a  right 
to  recover  the  amount  from  B,  the  prior  endorser.      Hubbard  v. 

Williamson,  5  Ired.,  397. 

23.  An  accommodation  bill  was  drawn  for  the  purpose  of  be- 
ing discounted  at  a  bank,  and  at  the  foot  of  the  bill  was  a  me- 
morandum, signed  by  the  last  endorser,  directing  the  proceeds 
to  be  credited  to  the  drawer.  On  the  trial  of  n  suit  by  the 
last  against  a  prior  endorser,  it  appeared  that  this  memorandum 
had  been  cut  off;  and  it  was  held,  that  the  memorandum  was 
no  part  of  the  bill,  and  that  its  being  taken  off  in  no  way  affect- 
ed  the  rights  of  the  parties.     Ibid. 

24.  Taking  negotiable  papei\  in  payment  of  a  precedent  debt, 
constitutes  a  purchase  of  it  for  value,  and  the  bona  fide  endorsee 
will  hold  it  unaffected  by  any  equities,  if  he  take  it  without  no- 
tice of  any  facts,  which  implicate  its  validity,  as  between  the 
prior  parties.     Beddick  v.  Jones,  6  Ired.,  107. 

25.  Where  a  note  was  executed  in  this  State,  not  payable  at 
any  particular  place,  and  was  afterwards  endorsed  in  the  State 
of  Virginia;  it  was  held  that  whatever  might  be  the  law  of  Vir- 
ginia, the  endorsee  could  maintain  his  action  in  this  State, 
against  both  the  drawer  and  endorser.     Ibid. 

26.  The  alteration  of  a  bill  or  note  in  a  material  part  vacates 
it,  except  as  between  the  parties  consenting  to  such  alteration. 
Davis  v.  Ooleman,  7  Ired.  424. 

27.  Cutting  off  the  name  of  one  of  the  makers  of  a  promissory 
note,  and  substituting  another  is  a  material  alteration.     Ibid. 

28.  The  sole  purpose  of  the  act  of  1827,  relating  to  endorsers, 
was  to  turn  the  conditional  contract  between  the  endorser  and 
the  holder  of  a  negotiable  bond  into  an  unconditional  one.  It 
was  not  intended  to  charge  the  endorser,  as  if  he  had  executed 
the  bond  as  a  co-obligor,  or  upon  an  endorsement  without  con- 
sideration, or  to  deprive  him  of  the  benefit  of  the  statute  of  limi- 
tations. Topping  v.  Blount,  11  Ired.,  62.  (See  Rev.  Code,  ch.  13, 
sec.  10.) 

29.  Where   a  note  or  bond  is  assigned  after  it  is  due,  the 


BILLS  OF  EXCHANGE,  &c— IN.  157 

assignee  holds  it  subject  to  all  the  set  offs  and  payments  to 
which  it  was  subject  in  the  hands  of  the  payee.  Otherwise, 
when  the  note  or  bond  is  assigned  before  it  is  due,  unless  the 
payments  are  endorsed  on  the  instrument.  Turner  v.  Beggarly-, 
11  Ircd.,  331. 

30.  Where  A  brought  an  action  to  recover  the  amount  of  a 
bill  of  exchange,  which  he  had  drawn  on  B  in  favor  of  C,  and 
which  liad  been  accepted  by  B,  and  afterwards  came  into  the 
possession  of  A  without  endorsement;  it  loas  held,  that  A  could 
not  recover  in  a  count  on  the  bill,  because  it  had  not  been  en- 
dorsed to  him ;  and  that  he  could  not  recover  on  a  money  count, 
without  showing  either  that  the  bill  had  been  endorsed  to  him, 
or  in  blank,  or  that  he  had  been  obliged  to  pay  the  money  in 
consequence  of  his  liability  as  drawer,  or  that  they  had  accounted 
together  and  the  acceptor  had  been  found  indebted  to  the 
drawer  in  the  amount  of  the  bill.    Smith  v.  Bryan,  11  Ired.,418. 

31/  If  a  note  be  transferred  before  it  is  due,  the  endorsee  will 
hold  it  freed  from  any  dealings  between  the  maker  and  payee, 
had  before  that  time ;  but  if  transferred  after  it  is  due  and  dis- 
honored, the  maker  is  entitled  to  the  same  defences  against  tlie 
endorsee,  as  he  would  have  had  against  the  payee.-  Little  v. 
Dunlap,  Busb.,  40. 

32.  The  maker  of  a  promissory  note,  not  for  accommodation, 
is  not  liable  to  the  payee  for  the  costs  of  a  suit  brought  against 
him  by  an  endorsee,  as  he  might  have  paid  the  debt  and  sued 
the  maker,  without  incurring  the  costs.  Bvffalow  v.  Pipkin,  2 
Jones,  130. 

33.  Where  a  note  was  payable  to  "T.  D.,  cashier,"  negotiable 
and  payable  at  a  particular  bank,  for  the  purpose  of  being  dis- 
counted at  that  bank,  but  was  rejected,  and  was  afterwards  sold 
and  delivered  by  the  principal  therein,  without  the  assent  of  the 
sureties,  to  a  third  person;  it  tens  held,  that  T.  1),  could  not 
recover  for  the  benefit  of  such  third  person  against  the  surety  to 
such  note.     Dewey  v.  Cochran,  4  Jones,  184. 

34.  Where  a  note  was  made  payable  to  (blank.)  "cashier  or' 
order,"  negotiable  at  either  of  three  banks  in  a  particular  town, 
and  the  name  of  the  cashier  of  one  of  the  banks  was  afterwards 
inserted,  and  the  note  was  by  him  endorsed  in  blank,  without 
value  and  without  recourse;  it  was  held,  that  it  was  apparent 
that  the  note  was  made  to  be  discounted  at  bank  for  the  accom- 
modation of  the  maker,  and  was  of  no  validity  asagainst  the  sure- 
ties unless  so  discounted;  and  further  that  a  holder,  even  sup- 
posing the  other  objection  was  of  no  force,  could  not  recover 
without  showing  that  he  had  paid  value  for  it.  Souiherland  v. 
Whitol:<i\  5  Jones,  5. 

35.  Such  a  note  is  distinguishable  from  a  note  or  bill  founded 
upon  a  real  transaction,   and  evidencing  real  indebtedness;  for 


158  "BILLS  OF  EXCHANGE,  &c— IX.-X, 

though  made  negotiable  at  a  bank  and  discounted,  a  note  of  the 
latter  character  is  good  against  all  the  parties  to  it,     Ibid- 

36.  Where  A  was  indebted  to  B,  and  drew  a  note  negotiable 
■and  payable  at  bank  and  endorsed  by  0  and  D  for  the 
.accommodation  of  the  maker,  and  delivered  it  to  his,  A's,  cred- 
itor, by  whom  it  was  endorsed  to  E  for  a  valuable  consideration,; 
it  im&  held,  that  the  latter  could  recover  against  the  maker  of 
3Uch  note,  or  any  of  the  endorsers  of  it.  although  trk>  note  had 
never  been  discounted  at  the  bank,  nor  offered  for  such  purpose. 
Say  v.  Banks,  6  Jones,  118. 

37.  Where  a  person  signs  a  note  in  blank,  and  delivers  it  to 
another  to  be  tilled  up  and  used  by  him,  the  party  signing  M 
bound  to  others,  to  whom  it  has  come  in  the  course  of  business, 
after  being  filled  up,  just  as  he  would  have  been  if  the  blank 
had  been  filled  up  before  he  signed.  McArthur  v.  McLeod,  6 
Jones,  476. 

38.  Where  a  note  is  given  for  a  real  business  transaction,  it  is 
negotiable  in  the  market  generally,  and  the  parties  on  it  will  be 
bound,  although  it  may  be  expressed  to  be  payable  at  a  bank. 
It  is  only  restricted  when  it  appears  from  the  paper  that  it  was 
intended  to  be  used  at  the  bank,  and  qo      ■    ei  i.e.     Ibid: 

39.  The  liability  of  a  drawer  of  an  order  is  a  conditional  one. 
depi  nd  ml  on  presentation  and  notice  of  the  drawee's  failure  to 
pay:  a  promise  bya  drawer,  therefore,  to  pay  the  payee  el'  such 
ir-dei    without  his  having  made  si  i        on   and   given 

such  notice,  is  without  consideration  and  Foid.    11  mien  v.  Teague, 
7  Jones,  573. 

See  (Attachment — Of  the  garnishee  and  proc  edit  i  against 
him.  12.)  (bills  of  exchange  and  Promissory  Notes— Of  their 
endorsement  and  transfer.)     (Interest,  14.) 

X.   EFFECT  OF  A  BILL  oil  NOTE,  WHEN  TAKEN  FOR  GOODS  SOLD,  01!  FOR 
A  PRECEDENT  DEBT. 

1.  Where  a  creditor  of  a  firm,  for  goods  sold  and  deln  ered,  had 
taken  the  promissory  note  of  the  firm  in  settlement  ol  the  ac- 
count, and  had.  alter  a  dissolution  of  the  firm,  taken  a  bill  of 
ige  drawn  by  one  of  the  kite  partners  iii  his  own  name. 
which  was  protested  lbr  the  want  of  funds  of  the  drawer,  and 
had  delivered  up  the  promissory  note,  such  creditor's  original 
claim  was  not  merged  by  the1  promissory  note  or  bill  of  exchange, 
but  he  is  entitled  to  recover  lor  the  price  of  the  goods  sold  and 
delivered,  provided  he  has  surrendered  such  bill  of  exchange. 
Sp  ar  v.  AtJcimon,  1  Ired.,  262. 

i'.  'faking  a  promissory  note  or  bid  of  exchange  for  an  ante- 
cedent debl  does  not  merge  that  debt,  but.  on  failure  of  the  note 
or  bill,  the  original  debt  may  be  recovered.     Ibid. 


BILLS  OF  EXCHANGE,  &c,  BONDS.— XI.  159 

XI.        DAMAGES. 

1.  Damages  may  be  given  for  difference  of  exchange  between 

this  State  and  Philadelphia,  to  be  ascertained  by  noting  the  va- 
lue of  hard  money  here,  and  what  dollars  passed  atthere.  Mor- 
ris v.  Stokes,  Mar.  20,  (4.) 

i.  A  note  for  the  payment  of  £60,  specie,  in  tobacco  at  the 
specie  price,  is  a  note  simply  for  the  paymenl  of  so  much  money; 
and.  in  ascertaining  the  damages  in  a  suit  on  such  note,  the  jury 
may  consider  the  difference  in  the  value  of  money.  Stanly  v. 
{  hmmins,  Mar.  20,  (">.) 

3.  In  a  suit  on  a  note  to  pay  £100  sterling,  according  to  the 
course  of  exchange,  the  jury  were  instructed  to  find  the  exchange 
at  77  7-9.     Emsly  v.  Lee,  '.Mar  25,  (13.) 

4.  On  a  bond  for  Virginia  money,  made  in  this  State, 
and  payable  her",  held,  that  the  value  must  be  ascertained  by  the 
rates  established,  not  according  to  the  exchange.  Montfort  v 
Alston,  1  Hay.,  2,  (3.) 

5.  Damages  cannol  be  claimed  under  the  qffct  of  l796ona  bill. 
which  has  not  the  words  "for  value  received."  %s,  lav. 
118,  (7(i.)     See  Rev,  Code,  ch.  13,  sec.  8. 

6.  Damages  on  a  protest  should  be  accordinj  !  ofthe 
country  whe  I  is  drawn.  Scliermerhorn  v.  i  Conf, 
Rep.  452,  (510,)  S.  P.  Anonymous,  -1  Hay..  280,  (456.) 

7.  If  a  bill  be  drawn  ad  sea,  the  law  of  tl  e  place,  to  which  the 
vessel  belongs,  shall  prevail.     .[,•■■  280   |    56.) 

8.  In  an  action  by  the  holders  of  a  lull  of  e:  ainst  a 

which    had   undertaken   to    collect    it,  foj  ing  the 

drawer  notice  of  non-paymenl  by  the  acceptoi    the   tad    ofthe 

drawer'  .  may  be  estimati  ,     essing 

aount   of   damages.     Stowe  v.   Bank  of    Ct    ■     Fear    '■> 

Dev.,  -ins, 

[)-  Where  a  hank  receives  a  lull  of  exchangi  Fn  m  the  drawer 
for  collection,  it  acts  as  the  agent  of  the  i  :  is  nol  enti- 

damagi  s  if  the  bill  be  prol         I  only  claim 

expenses,     Runyon  v.  Latham*  ■<  [red..  551. 


BONDS. 

I.  Of   their  execution,    including  de-  .'  IV.  Of  I  '..n  of  bonds. 

livery.  V.  When  bonds  ma;  ormaynotbeavoideffi 

II.  Of  the  construction  of  bonds,   and  j   VI.  Oi  the  if  bonds. 

ofthe  condition.  |  VII.  Proceedings  in  suits  upon  bonds. 

III.  01  official  and  public  bonds.  |  VIII.  P.  action  of  bonds! 


ICO  BONDS.— I. 

I.       OF    THEIR   EXECUTION,    INCLUDING    DELIVERY. 

1.  If  a  bond  be  delivered,  and  afterwards  the  obligor  take  it, 
make  an  endorsement  upon  it  and  hand  it  back  to  the  obligee, 
the  endorsement  will  be  binding  as  part  of  the  bond.  Bryant 
v.  Stewart,  2  Hay.,  09,  (259,)  and  111,  (269.) 

2  If  an  obligee  once  accept  a  bond,  by  himself  or  his  agent,' 
lie  cannot  afterwards  disagree  to  it,  so  as  to  make  it  void.  Bank 
of  Newbern  v.  Pugh,  1  Hawks,  198. 

3.  A  bond  is  the  act  of  the  person  whose  name  and  seal  are 
affixed  to  it,  and  whose  act  it  purports  on  its  face  to  be,  and  can- 
not be  rendered  the  deed  of  another  by  the  averme&t  of  a  collat- 
eral fact.     Delius  v.  Cawfhorne,  2  Dev.,  90. 

4.  A  bond  must  be  perfect  in  all  respects  before  its  delivery ; 
and  if  a  blank  be  left  m  it  for  the  amount  of  the  money,  to  be 
filled  Tip  when  the  sum  is  ascertained,  and  after  its  delivery  it 
be  fairly  filled  up  by  a  stranger,  it  will  nevertheless  be  void: 
and  a  subsequent  payment  on  the  bond,  or  a  subsequent  delivery 
of  it,  will  not  make  it  valid,  unless  it  was  so  intended.  McKee 
v.  Hicks,  2  Dev,,  379, 

5.  The  name  of  an  obligor  being  omitted  in  the  body  of  a 
lx>nd  is  no  objection  to  its  validity.  Vanhook  v.  Barnett,  4 
Dev.,  2G8. 

6.  Delivery  is  a  question  of  fact  for  the  decision  of  a  jury, 
and  the  circumstances  from  which  it  is  to  be  inferred  must  bo 
left  to  them;  it  being  error  in  the, court  to  say  what  circum- 
stances constitute  a  delivery.     Ibid. 

7.  An  instrument  signed  and  sealed  in  blank,  and  handed  to 
an  agent  orally  authorized  to  fill  up  the  blank  and  deliver  it. 
is  not  the  deed  of  the  principal;  and  after  declarations  of  the 
principal,  approving  of  the  delivery  by  the  agent,  made  in  th# 
absence  of  the  instrument  and  without  any  act  in  relation  to  it, 
will  not  amount  to  an  adoption  and  ratification  of  the  delivery. 
Davenport  v.  ShigM,  2  Dev.  and  Bat.,  381. 

8.  No  particular  form  is  necessary  in  the  delivery  of  a  bond: 
the  mere  throwing  on  the  table,  or  any  act  or  word,  from  which 
the  intention  of  the  obligor  to  put  the  bond  in  the  possession 
of  the  obligee,  may  be  inferred,  is  sufficient.  Hence  where  the 
obligor  had  signed  the  bond  while  it  was  blank  as  to  the 
amount,  and  the  agent  of  the  obligee,  after  it  Avas  filled  up, 
presented  it  to  the  obligor  and  told  him  the  amount,  at  which 
the  obligor  expressed  bis  surprise,  but  acknowledged  Ins  signa- 
ture to  the  bond,  and  did  not  object  to  the  agents  retaining  it 
as  his,  the  obligor's,  act  and  deed,  it  was  held,  to  be  sufficient 
evidence  from  which  to  infer  a  delivery.  Black  well  v.  Lane,  4 
Dev.  and  Bat,,  113. 

9.  A  bond  cannot  be  delivered  to  the  obligee  as  an  escrow,  foi 
such  a  delivery  would  make  it  absolute  at  law;  but  it  may  be 


BONDS.— I.  i6l 

delivered  by  the  sureties  to  the  grincipal  obligor  as  an  escrow. 
BhniK  v.  Botcman,  2  Iretl.,  338. 

10.  Where  a  bond  has  no  subscribing  witness,  then  the  proof 
of  tin-  possession  by  the  obligee,  and  of  the  handwriting  of  the 
obligors,  is  a  sufficient  ground  for  presuming  that  the  bond  was 
sealed  and  delivered  by  the  obligors.     Ibid. 

11.  The  bare  circumstance,  that  the  name  of  a  person,  who 
did  not  execute  the  bond,  is  inserted  in  the  body  of  it,  as  one  of 
the  obligors,  is  not  of  itself  evidence  to  show  that  those,  who  did 
sign  and  seal  and  deliver  it,  delivered  it  only  as  an  escrow,  upon 
condition  that  that  perston  should  also  execute  it.     Ibid. 

12.  A  paper  writing,  purporting  to  be  a  bond,  signed  and 
seak  1 1  1  iy  a  party,  in  which  a  blank  is  left  for  the  sum  to-  be  after- 
wards inserted,  which  blank  is  afterwards  filled  up  and  the 
paper  delivered,  not  in  the  presence  of  the  party  signing,  nor 
by  any  person  having  authority  from  him  under  seal,  is  noi  the 
bond  of  the  party  so  signing  and  scaling.  Gfiltamv.  Holt,  3 
Ired.,  .".in). 

13.  He  who  attempts  to  execute  or  consummate  a  bond  or 
deed,  whether  for  money  or  any  other  property,  must  have 
authority  to  do  so  under  seal.     Ibid. 

14.  In  every  good  bond  there  must  be  an  obligor  and  an  obli- 
gee, and  a  sum  in  which  the  former  is  bound.     Ibid. 

15.  It  is  of  the  essence  of  a  bond  to- have  an  obligee  as  well 
as  ohligoi?;  it  must  show  upon  its  face  to  whom  it  is  payable; 
and  the  defect  cannot  be  supplied  by  showing  a  delivery  to  a 
particular  person.     Phdps'v.  Call,  7  Ired.,-262. 

lo'.  A  stranger  may  accept  the  delivery  of  a  bond,  and  it  is 
good  unless  the  obligee  refuse  to  ratify  the  delivery;  but  in  the 
absence  of  proof  to  the  contrary  such  ratification  is  presumed. 
Iredell  v.  Barbee,  9  Ired,  250. 

17.  Although  a  bill  or  promissory  note  may  be  made  payable 
to  A  or  bearer,  yet  a  bond  cannot.  That  being  a  deed,  must  be 
mad'-  to-some  certain  obligee, to  whom  it  may  be  delivered. 
Marsl  v.  Brooks,  11  Ired.,  409. 

18.  After  a  bond  has  become  a  perfect  instrument,  the  obligee 
can.    by  endorsement,  order  the  payment  to  be  made  to  the 

.  fur  in  respect  to  their  transfer,  notes  and  bonds  are  put 
pn'the  same  footing.  But  their  nature,  in  their  inception  and 
I  i  Fore  endorsement,  is  nut  touched  by  the  statute  and  remains 
as  at  common  law.     Ibid.     ^See  Rev.  Gode,ch.  13,  sec.  1.) 

lit.  To  render  the  delivery  of  a  bond  effectual,  acceptance  on 
the  part  of  tin-  obligee  is  as  necessary  as  the  transfer  on  the 
part  of  the  obligoi-.     Bespass  v.  Latham,  Busb.,  138 

20.   Where  A  and  B   executed  $  bond  payable  to  C,  for  the 
Purpose  of  burrowing  money  on  it  fur  the  benefit  of  A,  ami  C, 
Having  refused  to  receive  it  and  advance  the  money,  return 
to    A.   and  eight  days  thereafter  A  sent  the  bond  back  to   C 
11' 


162  BONDS.— I.-II. 

with  an  endorsement  to  D,  written  thereon,   "withp 
&c,"  which  he  requested  C  to  sign,  and  C  did  sign  it,  supposing 
that  1>  would  advance  the  money;  it  was  held,  in  a  suit  against 
B,  at  the  instance  of  C,  the  endorsee,  that  the  bond  was  void 
for  want  of  delivery,  on  account  of  C.'s  having  i  ■  to  accept 

it,  and  that  the  subsequent  endorsement  and  transfer  of  it  to  D 
aid  not  bind  the  defendant,  he  having  given  no  authority  for 
such  new  delivery.     J   '  '. 

21.  Upon  the  plea  of  now  i  ;  fadi  m,  the  admission  by  the  de- 
fendant of  the  genuineness  of  the  signature,  while  he  alleges  at 
the  same  time  that  the  body  of  the  note  was  a  forgery,  does  no,t 
relieve  the  plaintiff  from  the  onus  ol  proving  the  execution -of 
the  heed  declared  on.     Otey  v,  Hoyt,  2  Jones,  70. 

22.  A  bond  made  for  the  purpose  of  raising  money  mi  loan 
was  made  payable  to  A,  who  refused  to  advance  money  upon  it  % 
il  was  afterwards  sold  by  one  of  the  obligors  to  B;  and  it 
was  held,  that  these  facts  did  not  amount  to  any  evidence  of  a 
delivery  to  A.      Whiehardv.  Jordan,  6  Jones,  54. 

■2'A.  The  delivery  of  a  bond  or  any  oth  •>■  deed,  to  a  si  ranger,  is 
no1  a  delivery  to  the  obligee  or  grantee,  unless  it  be  delivered 
for  the  benefit  or  use  of  the  party.     Ildd. 

24.  The  fact  that   the  bund  in  the  above  case  was  afterwards 

d  in  a  d  e   and  signed  '•;■■  him,  in  trust 

to  secure  creditors,  among  whom  was  B  is  no  evidence  that  the 
bond  was  delivered  to  A,  or  to  B  for  his  benefit.     Ibid. 

25.  It  matters  not  in  what  manner  or  form  an  I  uts  his 
signature   to  a  sealed    instrument,  provided  i1   aj  peai 

made  i1  for  the  purpose  of  binding  himsi  if.      ;  v.  llin\ 

,  7  Ji s,  .">10. 

II.       OF   THE    CONSTRUCTION    OF    BONDS,    AND    OF   THE   CONDITION. 

1.  The  condition  of  a  1  of  t]  a,  and 
no  action  can  be  brought  upon  it.  Adams  v.  Spear,  J  Hay., 
215,  (245.) 

2.  If  a  bond  be  givi  is  for  thi  hire  of  a  sLn  :  •.  stipu- 
lating that  he  shall  noj  te  hirer 
break  this  stipulal                        the  slave  is  di  iid  he  is 

lompelled  to  pay  tin    value  of  slave,  I  his  wil!   I     no  grou 

in  a  suit  upon  a  bond  for  the  hire,      b  .  Jones,  2 

Murph.,  54. 

3.  A  bond  to  pay  $100  d  work  horse,"  means  a  horse 
worth  $3.00,  i  er  of  a  horse  worth  onl;  i  Hare  is 
aot  sufficient.     Gray  v.   Young,  2  Murph.,  123. 

4.  An  injunction  bund  is  forfeited,  and  the  security  is  liable 
thereon,  whether  the  induction  be  dissolved  on  the  m  'rits,  or  in 
consequence  of  the  death  of  the  complainant,  -  neglepl 
to  sue  out  process  in  due  time..   J<  nes  v.  Hill,  2  Murj  li.,  131. 


BONDS.— II.  163 

5.  When  a  bond  is  given  for  the  hire  of  a  slave  for  a  year,  the 
sickness  and  death  of  the  slave  during  the  year  will  furnish  no 
grounS  for  an  apportionment  of  the  sum  secured  by  the  bond. 
Ragland  v.  Gross,  2  Car.  L.  R,  121,  (219.) 

li.  Executions  having  issued  against  .\  were  levied  on  a  horse 
in  the  possession  of  Ji,  who  gave  a  b I  payable  to  the  plain- 
tiffs in  the  executions,  with  the  defendants  as  his  sureties,  for 
the  production  of  the  horse,  and  on  the  failure  of  the  obligors  to 
deliver  the  horse  to  the  sheriff,  who  however  did  not  attend  to 
receive  him,  held  that  as  the  obligors  had  undertaken  to  do  an 
nger  ever  whom  the  obligees  had  no  control,  the 
pbligors  tvere  not  e  ci  ed  bj  fchi  refusal  or  neglect  of  the 
stranger.     NitcliM  v.  Patillo,  '2  Hawks,  40. 

7.  To  express,  in  the  condition  of  a  bond,  what  the  law  would 

aplied  from  the   other  words  inserted,  cannot  affect  the 
validity  of  the  bond.     Ju  lg<  s  v.  Deans,  2  Hawks,  93. 

8.  The  obligor  must  show  either  that  he  has  fully  complied 
with  the  condition  of  his  bond,  or  that  he  has  offered  to  do  so; 
then 'fun.',  a  condition  to   convey  an    equal  and  fair  half  of  a 

:  tract  of  land,  belonging  to  the  obligor,  is  not  peri 
by  an  offer  to  convey  a  cei  tain  tract  by  metes  and  bounds,  with- 
out proof  of    title  or  the  fairness  of  the  division;    neither  is 
formed  by  an  offer  to  convey  an  undivided 
interest  less  in  quantity.     Smith  v.  Shepard,  1  Di  v.,  461. 

9.  \:i  insensible  condition  renders  tin     bond,  to  whi 

!,  single;  but  unm  aning  v  ords  in  the  condition    I 
or  th      i  iiefit  of  it. 
<  dated  in  April,  was  For  the  delivery  of  th 
erty"the  L5th  Friday  before  May  court,"  the  figures  wen  reji   ;ti  a 
and,  th  iurt  having  a  term  in  May,  the  delive] 

-I  on  the    Friday   before  the  ensuii 
Foster  v.  Fro  '■  1  ' '  sv.,  42-1. 

10.  The.  condition  of  a  bond  :s  inserted  for  the  benefit  i 

iile  him  to  ■  ■  If  from  the  pi  nalty.    If 

of  a   condition,  however  improper,   should   f 
ty  be  enfoi 
ligor,  notwithstanding  he  had  fully  executed  the  condi- 
:ording  to  the  understanding  of  the  parties.     Aj  y  uncer- 
therefore,  in  the  condition    i 
ind  corrected  b  «i  indmeni ;  and  words .  v  bich 

■  no  distincl  en  ai  ing,  ;#ul  which 

Lue  of  the  eon- 
er.     Ibid. 

11.  .  r  of  a  bank  "to  ao  ount 

le  and  pay  over  all  monies,  &c,"  is  tanl  i         i;   con- 

ii"        d         avior ; "  and  ii  '  n  the 

scribing  the  latter  condition.  .and 


164  BONDS.— II. 

does  not  preclude  the  insertion  of  the  former.     State  Bank  v. 
Lccle,  4  Dev.,  529. 

12.  A  bond,  with  a  condition  to  be  void  upon  the  payment  of 
.such  damages,  as  might  be  recovered  of  the  principal  obligor, 
for  "wrongfully  bringing  a  suit  in  equity  against  the  obligee,  is  a 
guaranty  that  the  principal  shall  be  able  to  satisfy  any  judgment 
obtained  against  him,  in  an  action  on  the  case,  for  wrongfully 
filing  the  bill ;  and  no  action  can  be  brought  on  such  bond, 
until  the  obligee  has  obtained  such  a  judgment,  and  failed  to 
procure  satisfaction.     Davis  v.  Gully,  2  Dev.  and  Bat.,  360. 

13.  Where  the  defendant  entered  into  a  penal  bond  to  the 
plaintiff,  with  a  condition  which  recites  that  the  plaintiff  "had 
contracted  with  the  defendant  to  furnish  a  steam  engine,  &c, 
and  to  put  up  a  saw  mill  frame  of  the  best  materials,  &c,  the 
said  defendant  to  find  every  thing,  erect  the  furnace  and  flue, 
&c,  and  to  have  the  whole  clone  in  a  convenient,  durable  and 
workmanlike  manner,  &c,"  and  to  have  the  whole  done  by  a 
certain  time,  it  was  held  that  the  defendant  was  to  furnish  the 
engine  and  all  the  materials,  and  do  all  the  work,  and  not  the 
furnace  and  flue  only.      Gordon  v.  Rainey,  2  Dev.  and  Bat.,  487. 

14.  Where  there  is  an  ambiguity  in  the  condition  of  an  obliga- 
tion, which  cannot  otherwise  be  removed,  the  law  adopts  the 
construction  which  is  most  favorable  to  the  obligor;  but  no  for- 
mal or  technical  words  are  essential  to  the  constitution  of  a  con- 
dition, and  any  set  of  words,  from  which  it  can  be  satisfactorily 
collected  that  it  was  the  intention  of  the  obligor  to  bind  himself 
to  the  per  formance  of  a  duty,  will  be  sufficient  to  make  the 
performance  of  that  duty  a  part  of  the  condition  of  his  obliga- 
tion.    McLane  v.  Peoples,  4  Dev.  and  Bat..  9. 

15.  Where  a  bond  was  given  to  secure  tne  payment  of  a 
certain  sum  at  a  particular  day,  which  sum  was  stated  to  be  in 
part  for  a  tract  of  land,  and  a  condition  was  annexed,  that  the 
obligee  should  keep  the  obligor  "indemnified  as  to  the  heirs  "  of 
a  certain  person,  it  was  //<I<L  (hat  as  the  money  was  payable  at  a 
particular  day,  and  the  indemnity  provided  for  indefinite  as  to 
time,  the  indemnity  was  not  a  condition  precedent  to  the  pay- 
ment of  the  money.     Wellhmm  v.  James,  4  Dev.  and  Bat.,  234. 

16.  The  condition  of  a  bond  given  upon  obtaining  a  writ  of 
sequestration  and  on  a  Judge's  fiat  in  a  suit  in  equity,  that  the 
plaintiff-shall  prosecute  his  said  suit  with  effect,  or,  in  case  he' 
fails  therein,  shall  well  and  truly  indemnity  the  defendant  for  all 
damages  which  he  may  sustain  by  reason  of  the  filing  of  the 
said  Mil  and  tlie  suing  out  of  said  writ,  and  shall  further  do  and 
receive  what  the  said  court  shall  consider  in  that  behalf,  is  not 
broken  by  any  thing  short  of  an  abandonment  of  the  suit  by 
the  plaintiff,  or  his  defeat  therein.  Hence,  a  decretal  order  in 
lie  ]  igress  of  the  cause,  that  the  sequestration  be  removed 
and    the    sequestered    property    restored   to     the    possession 


BONDS.— II.  165 

of  the  defendant,  and  that  he  have  leave  to  put  the  bond  in  suit, 
but  without  finally  deciding  the  matters  in  contest  between  the 
parties,  will  not  authorize  a  recovery  on  the  bond  for  a  breach  of 
its  conditions.     White  v.  Pettijohn,  1  Ired.,  52. 

17.  The  distinction  between  a  bond  given  upon  obtaining  a 
writ  of  sequestration,  under  a  judge's  fiat,  and  an  ordinary  in- 
junction bond,  given  upon  obtaining  an  injunction  to  stay  a 
judgment  at  law,  stated  and  explained.     Ibid.. 

18.  Where  the  condition  of  an  injunction  is,  that  the  complain- 
ants "shall  well  and  truly  indemnify  the  obligees  for  all  dama- 
ges they  may  sustain  by  wrongfully  suing  out  the  injunction,"  it 
will  not  be  necessary  for  the  obligees,  upon  a  dissolution  of  the 
injunction,  to  bring  an  action  on  the  case  to  ascertain  the  dama- 
ges sustained  by  them,  before  suing  upon  the  bond.  FaRs  v. 
McAfee.  1  Ired.;  139. 

19.  In  an  action  upon  a  bond,  the  condition  of  which  is  to  in- 
demnify the  plaintiffs,  "  for  all  damages  they  may  sustain  by 
reason  lift  lie  wrongful  suing  out  of  au  injunction"  by  the  de- 
fendant, to  stop  the  plaintiffs  from  working  a  certain  gold  mine, 
it  is  necessary  for  the  plaintiffs  to  show  a  want  of  probable  cause 
for  the  former  suit,  anil  also,  in  a  legal  sense,  malice  in  bringing 
it.  but  where  it  appeared  that  the  party  who  sued  out  the  in- 
junction really  and  bona  ii<l<  entertained  the  belief  that  he  had 
just  grounds  for  his  suit,  the  idea  of  malice  is  negatived,  and 
the  action  upon  the  bond  cannot  be  supported.  Falls  v.  McAfee, 
t  Ired..  236. 

20.  Where  a  person  executed  a  penal  bond,  by  which  he  bound 
himself  to  devise  to  his  grandson  a  certain  tract  of  land  in  fee, 
and  the  devise  conveyed  only  a  defeasible  fee;  it  was  held  that 
this  was  not  a  devise  in  fee  according  to  the  condition  of  the 
bond;  and  that  for  the  breach  the  grandson  was  entitled  to 
recover,  as  damages,  the  difference  in  value  between  an  absolute 
ami  a  defeasible  fee  in  the  land,  the  damages,  however,  not  to 
ex«eed  the  penalty  of  the  bond.  Spruill  v.  Davenport,  5 
Ired.,  14.-). 

21.  Where  one,  under  a  decree  of  a  court  of  equity,  directing 
certain  slaves  in  his  hands  to  be  sequestred,  unless  he  gave 
bond,  entered  into  a  bond  conditioned  that  the  slaves  (naming 
them)  should  not  be  removed  away,  but  that  they  should  be 
Forthcoming  upon  the  further  order  of  the  court;  and  among  the 
negroes  named  was  one  who  had  been  removed  to  Tennessee 
and  sold  three  years  before  the  bond  was  given,  or  the  decree 
made;  it  tens  held  that  the  obligors  in  the  bond  were  bound  for 
the  delivery  of  this  negro  as  well  as  the  others;  and,  further, 
that  the  condition  of  the  bond  was  not  broken,  until  the  court 
of  equity  made  the  order  for  the  forthcoming  of  the  slaves, 
notice  thereof  was  given  to  the  obligors,  and  then  a  failure  to 
produce  them.     Hall  v.  PaschaU,  5  Led.,  668. 


166  BONDS.— II. 

22.  In  the  construction  of  bonds,  if  the  bond  be  a  single  one. 
it  is  tu  be  taken  most  strongly  against  the  obligor;  but  when  a 
condition  is  annexed  to  it,  which  is  doubtful,  as  that  is  for  the 
ease  and  favor  of  the  obligor,  it  is  to  be  taken  most  strongly  in 
his  favor.     Bemuelwtn  v.  Webb,  6  Ired.,  57. 

23.  In  the  construction  of  conditions,  the  court  will  look  to 
the  meaning  of  the  parties,  so  far  as  it  can  be"  collected  from  the 
instrument  itself,  and,  when  the  intention  is  manifest,  will 
transpose  or  reject  insensible  words,  and  supply  an  accidental 
omission,  in  order  to  give  effect  to  the  intention  of  the  p: 
Ibid. 

24  When  the  condition  of  a  bond  is  preceded  by  the  recita] 
of  a  particular  tact,  the  recital  will  operate  against  the  parties 
to  the  bond,  as  a  conelusive  admission  of  the  fad  recited:  and 
this  recital  will  frequently  operate  as  a  restraint  of  the  condition, 
though  the  words  of  it  imply  a  larger  liability  than  the  recital 
contemplates.     Ibid. 

25.  Under  the  act  of  1840,  entitled  "An  act  to  secure  the 
State  against  any  and  every  liability  incurred  for  the  Raleigh 
and  Gaston  Railroad  company,  and  for  the  relief  of  the  same," 
the  State  cannot  recover  upon  any  bond  given  under  the  said 
act,  unless  it  is  proved  that  the  whole  amount  of  $500,000  had 
been  secured  by  bonds.     Ibiil. 

26.  Where  the  condition  of  a  bond  was,  that  A  should  pay  to 
B  and  C,  attorneys,  $100,  on  condition  that  they  cleared  him  of 
three  suits  and  three  indictments  in  the  superior  court,  and  A 
was  cleared  in  the  superior  court  of  all  the  cases  excepl  one,  in 
which  he  was  convicted,  and  the  case  was  taken  to  the  supreme 
court,  where  he  had  to  employ  another  attorney,  but  the  judg- 
ment below  was  reversed,  and  A  was  discharged  from  the  prose- 
cution, it  was  held,  that  B  and  C  had  substantially  complied  with 
the  condition  precedent,  and  were  entitled  to  recover.  Candlef 
v.  Trommel!,  7  Ired.,   125. 

27.  Where  a  forthcoming  bond  is  given  for  the  delivery  of 
property  levied  on  by  a  constable,  it  is  fchedutyofthe  obligors.to 
put  the  officer  in  the  peaceable  possession  of  the  property,  at  the 
time  and  place  specified,  otherwise  their  bond  will  be  forfeited. 
Poteet  v.  Bryson,  7  [red.,  337. 

28.  Where  a  bond  is  entered  into  for  the  delivery  of  a  variety 
of  articles,  the  condition  is  broken  if  all  be  not  delivered. — 
Ibid. 

29.  Where  two  persons,  each  out  of  his  own  stock,  delivered 
goods  to  a  third  person,  to  be  peddled  out,  and  took  a  bond,  pay- 
able to  themselves  jointly,  and  conditioned  for  the  faithful  ac- 
counting therefor;  it  was  held,  1  li.it  they  could  recover,  in  a  joint 
suit  upon  the  bond,  notwithstanding  each  had  a  separate  indivi- 
dual interest  in  it.     Haughton  v.  Bagley,  9  Ired.  337. 

3D,  An  obligation  in  these  words,   "  ou  or  before  th&fiisj  daj 


BONDS.— II.  1(17 

of  Januarj  next,  I  promise  to  pay  U.S.  P>..  or  order,  $160  for 
the  hire  i  a  negro,  and  theu.se  of  two  full  crops  of  boxes  on 
Moore*  absolute,  and  not  conditionaL     Burney  v.    Gal- 

loway, 11  Ired.,  53. 

31.  A  bond  for  acertain  sum.  payable  in  specific  articles,  at  a 
particular  time  and  place,   becomes,   after  it  is  due,  necessarily 

i  y,  unless  the  defendani  can  plead 
and  pr<  i  rticles  at  the  time  and  place 

tioned  in  the  eonfa  r,  11  [red.,  276. 

32.  A  died,   leaving  three  children,  of  whom  B  tb 

v  idian.  and  who  had  slaves  left  to  them  by  the  will 

ofC,  to  I  i  amounl  i  f  upwards  of  $600,  B  gave  D,  the  plain- 
tiff, a  bond  of  the  following  purport  :  ''1  promise  to  pay  1 »  $360, 
i  consideration  of  money,  which  he  paid  for  A  and  his 
heirs,  which  sum  i  am  to  pay  when  it  can  be  raised  out  of  tin 
[eft  to  them  by  the  will  of  C."  The  writ  was  issued  near- 
ly threi  i   r  the  date  ' 

the  tru  action  of  the  bond  was  not  that  the  payment 

should    I  '     ed,  until  the  guardian  could  raise  the  amount 

out  of  the  hive  and  profits  of  the  property,  but  that  it  should  be 
made  as  soon  as  the  guardian  could,  by  proper  proceedings,  raise 
by  1  of  the  property,  and  that  this  could  have 

been  done  within  less  than  three  years.  Mcltat  v.  McSae,  11 
Ired.,  3 

33.  A  bond  .  to  an  officer  to  indemnify  him  for  selling 
Under  an  execution  at  the  instance  of  "J  and  II  against  W; ' 

.'■1,1.  that  to  entitle  the  officer  to  recove?  on  this  bond,  he 
must  show  that  he  sold  under  the  execution  mentioned  in  the 
bond.     Dickinson  v.  Jones,  12  [red.,  to. 

34.  A  condition  precedent,  in  a  bond  for  the  payment  of 
scription  to  Railroad  stuck,  that  the  road  is  to  be  completed  to  a 
certain  vill  ig  .  is  substantially  complied  with,  when  it  is  made 

village,  in  such  a  manner  as  to  bear  daily 
trains  on  it,  carrying  all  the  freighl  and  travellers  that  offer, 
although  some  portion  of  the  work  is  intended  to  be  replaced 
with  other  and   better  materials.     0 'Ned  v.  King,  3  Jones,  517. 

35.  Where  A  agreed  to  make  good  to  the  plaintiffs  certain 
sums,  which  they  had  paid  as  sureties  for  his  son,  out  of  that 
part  ol  which  his  son  would   be   entitled    to   at    A's 

•     !  !  ■    bond  to  such  claims  as  said  sure- 

ties   ould  "produce  oi  ithof  A;"  it  ivas  held  in 

asuil  i  :   executor  of  A,  thai  i1  was  no1  □  ryfoi 

the  su  show  that  they  had  exhibited  their  claims  to  A, 

but  only  that  they  had  paid  th   a   in  |  [g  life  time  and  nol 
his  deal  4  Jom  s,  444-. 

36.  W  hi  re  a  bondwasgiven  1"  pay  a  certain  sum,  on  or  before 

i  gold  mine,  with  a  condition  that   "should 
'.  / '■  ,v,v.  the  bond  to  be  null  and  void,  otherwise 


168  BONDS.— II.-III. 

of  full  effect, "  it  was  held  that  it  became  absolute  on  the  day 
named  for  the  payment,  provided  the  mine  had  not  previously 
been  tested  and  found  valueless ;  and  that  evidence  of  tests  after- 
wards made  was  inadmissible.     Gamble  v.  Beeson,  5  Jones,  128. 

37.  Where  the  owner  of  land  conveyed  it  to  a  bargainee,  in 
consideration  of  certain  profits  and  advantages  contained  in  a 
liiind  of  even  date  therewith,  which  said  bond  provided, under  a 
penalty,  that  the  bargainor  was  to  be  supported  for  life  by  the 
bargainee,  and  a  "nota  bene  "  was  added  to  the  bond  to  the  effect 
that  the  land  conveyed  by  the  deed  was  not  to  be  "sold,  made 
away  with  or  disposed  of"  during  the  life  of  the  bargainor;  it 
was  held  that  this  did  not  amount  to  a  condition  annexed  to  the 
estate  by  way  defeasance,  but  the  bargainor's  sole  redress  rested 
on  the  bond.     Hart  v.  Dougherty,  6  Jones,  86. 

38.  A  receipt,  not  under  seal,  given  by  the  obligee  of  a  bond  con- 
temporaneously with  its  execution,  setting  forth  that  such  bond 
was  given  for  a  third  person's  account,  and  that  if  such  account 
was  not  collected  by  the  obligor,  the  bond  was  to  be  delivered 
back  to  him,  it  was  held  that  the  bond  was  not  delivered  as  an 
escrow,  and  that  the  unsealed  receipt  could  not  amount  to  a 
defeasance.     Cross  v.  Long,  6  Jones,  153. 

39.  An  obligation  to  pay  a  sum  of  money  on  a  given  day,  "to 
be  discharged  in  any  good  trade,  to  be  delivered"  at  any  one  of 
several  places,  imposes  on  the  debtor  the  burden,  if  he  would 
save  the  condition,  of  giving  notice  of  the  place  where  he  will 
have  the  goods,  and  of  having  them  there  at  the  appointed  time. 
Barrett  v.  EUer,  6  Jones,  550. 

40.  On  a  bond  payable  twelve  months  after  date,  expressed  to 
be  for  the  hire  of  a  slave  for  a  year,  the  plaintiff  is  entitled  to 
recover,  although  he  got  possession  of  the  slave  ami  detained 
him  against  the  wishes  of  the  slave  before  the  year  was  out;  for 
the  being  allowed  to  keep  the  slave,  for  a  year  is  not  an  implied 
condition  precedent,     Hurdle  v.  Richardson,  7  Jones,  16. 

41.  A  bond  for  a  certain  sum  of  money,  payable  to  A  or  order, 
with  interest  from  a  day  prior  to  that  of  its  date,  is  payable  im- 
mediately, although  it  purports  to  lie  given  for  the  price  of  bricks 
to  be  delivered  at  a  future  day.  Watson  v.  Bledsoe,  1  Winst., 
253. 

III.       OF    OFFICIAL   AND    PUBLIC    BONDS. 

1.  A  guardian  bond  given  under  the  act  of  1762  should  have 
been  made  payable  to  the  justices  present  in  court,  and  granting 
the  guardianship.  If  made  by  an  acting  justice  to  "A  B,  and 
the  rest  of  the  justices,-'-'  &c,  it  will  be  void,  as  a  party  cannot  be 
an  obligor  and  obligee  ait  the  same  time.  The  Justices  of  Pas- 
quotankv.  Shannanhouse,,  2  Dev.,  6.  S.  P.,  Justices  of  Civrrituek 
y.  Dozier,  3  Dev..  287,     Justices  of  Choicau  y.  Bonner,  IUd,  W& 


BONDS.— III.  169 

Justices  of  Cumberland  v.  Armstrong,  lbid\  284  Dickey  v.  Jmey, 
4Dev.,  -!.">.  Davis  v.  Somervitte,  Ibid,  382.  (Ofli.-ial  bonds  of 
guardians,  clerks,  sheriffs.and  many  other  officers  are  now  made 
payable  to  the  State.     See  Rev.  iGode  under  the  proper  heads.) 

2.  In  action  upon  a  bond,  made  to  a  number  of  persons  as  a 
class,  by  the  name  cf  their  class  as  "with  the  justices  of  a  coun- 
ty," all  who  belong  to  the  class  must  join;  and  upon  item  est 
factum  pleaded,  it  must  be  averredand  proved  that  the  plaintiffs 
belong  to  that  class.      WiRiams  v.  Ehringhaus,  2  Dev.,  511. 

3.  The  acts  of  1777  and  1785,  requiring  the  obligees  of  the 
official  bonds  of  sheriffs  and  coroners  to  assign  them  to  persons 
injured  by  a  breach  of  their  conditions,  were  intended  to  facili- 
tate the  remedies  of  these  persons,  and  not  to  take  foam  them 
any  rights  which  they  had  at  common  law.  MeRae  v.  Evans,  2 
Dev.,  383. 

4.  The  act  of  1703,  authorizing  official  bonds  to  be  put  in  suit 
by  persons  injured  by  the  misconduct  of  the  officers,  without 
assignment,  is  in  affirmance  of  the  common  law;  and  athougb 
coroner's  bonds  are  not  mentioned  in  it,  fcheymay  be  sued  in  the 
same  manner.     Ibid,     (See  Rev.  Code,  ch.  78,  sec  1.) 

5.  A  bond  given  to  a  trustee,  with  a  condition  to  secure  the 
rights  of  others,  may,  at  comuaon  law,  be  put  in  suit  hi  the  name 
of  the  trustee,  and  an  injury  to  the  cestui  que  trust  be  assigned 
as  a  breach  of  it.     Hid. 

6.  The  statute  of  8th  and  9th  of  William  3,  ch.  11,  was  in- 
tended to  authorize  courts  of  law  to  ascertain  the  acfoial 
damage  incurred  by  the  breach  of  the  condition  of  a  bond,  and 
to  prevent  the  defendant  from  being  driven  to  the  necessity  of 
having  them  assessed  by  an  issue  of  quantum  damnificatus, 
awarded  by  a  court  of  equity.  Ibid.  (See  Rev.  Code.  ch.  31, 
sec.  58.)  (All  official  bonds  are  .now  made  payable  to  the  State, 
and  every  person  injured  by  a  breach  of  their  conditions  may 
sue  in  the  name  of  the  State.     Rev.  Code,  ch.  78,  sec  1.) 

7.  Where  a  bond  was  given  to  "the  justices  of  the  court  of 
pleas  and  quarter  sessions,"  and  sundry  persons  joined  as  plain- 
tiffs, averring  themselves  to  be  justices,  but  offered  no  evidence 
of  their  character,  it  was  held,  that  they  could  noi  recover, 
although  the  defendant  had  not,  by  any  special  pica,  denied  that 
they  were  justices.     Ibid- 

8.  Bonds  given  by  officersfor  the  faithful  performance  of  their 
duty,  which  do  not  conform  to  the  act  requiring  them,  can  only 
be  enforced  according  to  the  rules  of  the  common  law;  and  a 
bond  given  by  a  sheriff,  in  a  penalty  greater  than  that  required 
hy  law,  is  nor  within  the  provision,  authorizing  successive  suits 
on  sheriff's  bonds,  and  is  extinguished  by  the  first  recovery 
thereon.     Branch  v.  Elliott,  3  Dev.  86. 

9.  But  although  a  judgment  upon  such  bonds  is  a  bar  to  a 
second  suit,  yet  if  the  bond  be  within  the  statute  of  8th  and  9th 


170  BONDS.— III. 

Will.  3,  the  relator  may  have  a  sci.  fa.  suggesting  other' 
breaches,  or  if  Dot  within  that  statute,  execution  may  issue  at 
his  risk,  leaving  the  defendant  to  seek  relief  in  equity.     Ibid. 

10.  When  an  order  of  a  county  court  allowed  a  guardian  to 
renew  his  bond  with  A  and  B,  his  sureties,  and  a  bond  not 
drawn  according  to  the  statute  as  an  official   bond,  hut  good  as 

an  obligatio] lommon  law,  was  sealed  by  A  only,  and  left 

with  the  clerk,  it  was  held,  thai  a  delivery  could  nut  bo  inferred, 
there  being  no  evidence  of  an  actual  delivery.  Fittsy.  Green, 
3  Dev.  291.  (Defects  in  such  bonds  are  now  cured.  See  Rev. 
Code,  oh.  78,  s  sc.  9.) 

11.  A  bond  payable  to  "A.  B,  chairman  and  other  justices  of 
the  court,"  is  in  law  payable  to  A.  B,  alone.     Ihid. 

12.  Bonds  intended  to  be  official,  but  which  arc  not  in  con- 
formity to  the  .statute,  may  he  declared  on  as  voluntary  bonds 
at  the  common  law.      Williams  v.  Ehringhans,  3  Dev.  297. 

13.  A  bond  payable  to  the  justices  of  a  court  has  the  same 
validity,  as  if  i1  described  the  obligees  by  name.     Ibid. 

14.  A  bond  to  the  chairman  of  the  county  court,  his  "execu- 
tors," &c,  is  not  an  office  bond  for  the  want  of  the  word  '-suc- 
cessors," &c,  but  it  enures  as  a  private  bond,  and  a  delivery  to 
the  clerk  is  sufficient  unless  the  obligee  refuses  it,  although  the 
clerk  is  the  agent  of  the  chairman  as  to  office  bonds  only. 
Threadgitt  v.  Jennings,  •">  Dev.,  384 

15.  A  sheriff's  bond  executed  by  one,  who  was  an  acting  jus- 
tice, "to  A.  l'>.  and  the  rest  of  the  justices  composing,"  &c,  is 
void.     Dickey  v.  Alley,  4  Dev.,  43. 

16.  An  official  bond  to  an  officer,  appointed  to  take  it,  vests 
upon  his  death  or  resignation  in  bis  successors,  though  they  are 
not  named.     Doiod  v.  Duels.  4  Dev.,  61. 

1 7  Where  an  administration  bond  was  made  payatte  to  A.  B, 
and  "  other  justices  of  Person  county,"  and  it  appeared  that  the 
principal  obligor  was,  at  the  time  of  executing  it,  a  justice  of 
said  county;  it  was  held,  that  the  bend  was  valid,  and  the  words 
',' other  justices,"  were  rejected  as  senseless  and  uncertain.  Varir 
hook  v  Barnett,  4  1  *ev.,  268. 

18.  A  guardian  bond  payable  to  the  j  i  ftices  on  the  bench  is 
void  if  one  of  the  obligors  be  one  of  the  justices.     Do 
SomervM .  4  i  >ev.,  382. 

19.  A  bond,  which  imposes  upon  an  officer  nothing  but  what 
the  law  requires,  cannot  be  objected  to  because  it  does  not  con- 
tain all  that  the  law  prescribes.  Hence,  abond  executed  by  a 
constable,  which  stipulated  that  he  should  "well  and  faithfully 
execute  the  office  of  constable  during  his  continuance  in  said 
office,  agreeably  to  an  act  of  Assembly."  &c,  was  held  good  as 
an  official  bond  under  the  act  of  1818,  prescribing  the  duties  of 

( stables.      White  v.  Miller,   3  Dev.  and.  Bat.,  55.     (See   liev. 

Code,  eh.  24,  sec  7.) 


BONDS— II.  171 

20.  i  sheriff's  bond  to  "his  Excellency  M.  S.,  Captain  Gen- 
eral and  Commander  in  Chief,  in  and  over  the  State  of  North 

i  i.  in  the  sum  of  $10,000,  to  be  paid  1<>  his  Excellency,  the 
&ovi  rnor,  his  successors  and  assigns,"  is  a  bond  payable  to  the 

Got    r  in   his  official  capacity,  and  is  an  official  bond  within 

the:  I  of  L  823,  "which  was  in  force  when  it  was  taken.  Gov- 
i  rnor        .       brt,  1  Ired.,  155. 

21.  A  bond  payable  to  A  B,  governor  of  the  State,  for  tin  usi 
of  the  State,  goes  to   bis  snccessor  in  office,  a 

upon  in  the  name  of  the  successor.  Governor  v.  W\  I  "h  3,  [red., 
24D. 

22.  A  bond  taken  by  a  clerk  and  master  of  a  courl  of  equity 
in  pursuance  of  an  order  of  the  court,  and  mad''  payable 

and  his  succ<  ssors  in  office,  must,  on  iiis  death,  be  sued  upon  in 
the  name  of  his  personal  representative,  there  being  no  l;nv  re- 
quiring such  bonds  to  be  male  payable  to  him  and  "his  su  ce&- 
sors  in  office."     Kinney  v.  EfJwridt  e,  3  Ired.,  3(50. 

23.  '  :  ud,  payal  fe  to  the  State,  given  by  a  public  officer  for 
tiie  dis  i  F  public  duties,  though  not  taken  in  the  manner, 
nor  by  the  persons  appointed  by  law  to  take  it,  will  be  good  as 
a  voluntary  bond.  Being  for  the  benefit  pfthe  State,  the  State 
will  be  presumed  to  have  accepted  it.  when  it  was  delivered  to  a 
third  person  for  her  use.     States.  McAlpin,4  [red,  140. 

24  \  bond  given  by  a  sheriff  for  the  discharge  of  his  official 
duties,  though  void,  because  those  who  accepted  it  had  no  power 
to  do  so,  may  be  made  valid  ah  initio,  by  a  subsequent  act  of 
the  legislature,  declaring  that  such  bonds  should  be  considered 
as  having  been  legally  delivered ;  and  tins  consequence  will  fol- 
low if  the  act  be  passed  not  only  after  the  institution  of  a  suit 
upon  the  bond,  but  afti  r  a  decision  upon  it,  both  in  the  superior 
and  supreme  courts.     State  v.  Paul,  5  Ired.,  105.    (See  Rev.  Code, 

Ch.  79,  sec.  It ) 

25.  When  a  bond  is,  upon  its  face^  exclusively  for  the  use  of 
the  State,  an  express  acceptance  by  an  agent  for  the  State  need 
not  be  shown.     State  v.  Ingram,  5  Ired.,  441. 

26.  [nan   action  on  a   bond  payable  to  the  State,  and  condi- 

ti 1    For  building  and   keeping  in  repair  a  public  bridge 

deuce  that  the  bond  was  sjgned  and  sealed  by  the  oblig id 

was  afti  t  vards  found  among  the  official  papers  of  the  eltjrk  oi 
:!  mtycourt,  which   appointed  the  commissioners  toletout 

the  building  of  the  bridge,  is  sufficient  proof  of  a  delivery. 
Ibid. 

27.  Under  the  act  prescribing  the  remedy  against  sheriffs, 
eonstables,  &c,  when  1  hey  have  collected  money  and  failed  to 
pay  it  over,  the  party  injured  may  have  his  action  on  (he  officer's 
bond,  against  any  one  or  more  of  the  parties  to  the  bond,  with- 
out joining  the  principal  or  all  the  sureties.  Gimsv.  Barbee,Q 
Ired.,  279.     (See  Rev.  Code,  ch.  78,  sec.  4.) 


172  BONDS.— III. 

28.  Where  a  sheriff's  bond  had  been  taken  in  1838,  only  three 
justices  of  the  county  court  being  present,  and  the  bond  "was  for 
only  $ 4,0(10  instead  of  $10,000,  as  required  by  law,  it  was  held, 
that  the  defects  were  cured  by  the  act  of  1844,  which  had  a  re- 
trospective, as  well  as  prospective  operation.  .State  v.  Jones,  7 
Ired.,  359.     (See  Rev.  Code,  ch.  78,  sea  0.) 

29.  When  a  term  of  office,  (as  that  of  sheriff,)  is  for  more  than 
one  year,  the  bonds  given  for  the  faithful  discharge  of  the  duties 
of  his  office  at  the  time  of  his  appointment,  ami  (lie  new  one 
given  from  time  to  time  afterwards  are  cumulative;  that  is,  the 
first  bonds  continue  to  be  a  security  for  the  discharge  of  the  du- 
ties during  the  whole  term,  and  the  new  bonds  become  an  addi- 
tional security  for  the  discharge  of  such  of  the  duties  as  have  not 
been  performed  at  the  time  they  are  given.  Pool  v.  Cox,  9 
lred.,  69. 

30.  Where  a  statute  requires  a  bond  from  an  officer,  for  the 
faithful  discharge  of  his  duty,  and  a  new  duty  is  attached  to  the 
office  by  statute,  such  bond,  given  subsequently  to  the  latter 
statute,  embraces  the  new  duty  and  is  a  security  for  its  perform- 
ance, unless  where,  when  the  new  duty  is  attached,  a  bond  is 
required  to  be  given  specifically  for  its  performance.  State  v. 
Bradshaw,  10  Ired.,  22<C 

31.  Where,  in  the  order  of  the  county  court,  appointing  a 
guardian,  the  name  of  "Margaret"  was  inserted  by  mistake  as 
that  of  the  christian  name  of  the  ward,  instead  of  "Miranda,"  and  a 
bond  was  taken  according  to  flu.'  proper  requisitions  with  the  right 
name  inserted;  it  was  held,  that  the  bond  could  be  sustained  as 
an  official  bond  under  the  act  of  1842,  ch.  61.  State  v.  Perkins, 
I  Jones,  325.     (See  Eev.  Code,  ch.  78,  sec.  9.) 

32.  Where  a  constable's  official  bond  was  signed  by  four  per- 
sons as  obligors,  but  a  blank  for  the  constable's  name  in  the  con- 
dition was  left  unfilled,  so  that  it  did  not  appear  from  the  bond 
or  condition  who  was  the  constable;  it  was  held,  that  such  omis- 
sion rendered  the  condition  insensible  and  void,  ami  the  bond 
absolute,  so  that  no  one  could  declare  on  it  as  relator;  and  it  was 
held  further,  that  the  omission  was  not  cured  by  the  9th  section 
of  the  78  chapter  of  the  Revised  Code.  Grier  v.  Hill,  6  Jones, 
572. 

33.  The  ceremony  of  acknowledgement  in  open  court  ami  reg- 
istration, as  provided  for  in  the  Revised  Code,  eh.  LOS,  sec.  13, 
and  ch.  44,  sec.  8,  are  not  essential  to  the  validity  of  a  sheriff's 
bond.     McLean  v.  Bticluman,  <s  .Tones,  444. 

See  (Abatement — By  the  death  of  parties,  8.)  (Bonds — Pro- 
ceedings in  suits  upon  bonds,  8-10.)  (Constables — Of  their 
bonds.)  (Constables — Of  the  liability  of  them  and  their  sureties 
on  their  bonds.)  (Evidence — Proof  of  official  bonds.)  (Limi- 
tations— Of  actions  on  official  bonds.) 


BONDS.— IV.  173 

rv.       Of   THE   CONSIDERATION   OP   BONDS.. 

1.  A  bond  is  good  without  a  consideration  or  upon  an  inade- 
quate consideration.  But  evidence  of  either  fact  may  be  received 
when  the  question  is,  whether  the  bond  wa,s  made  under  such 
circumstances  of  fraud  and  imposition  as  to  render  it  void  in 
law.     Lester  v.  Zaehary,  1  Car.  L.  R.,  380,  £50.) 

2.  A  bond,  contract  or  agreement  for  a  sale  of  the  deputation 
of  the  office  of  clerk  of  a  court,  by  which  the  party  agrees  to 
pay  a  sum  certain,  and  not  out  of  the  profits,  is  void  under  the 
stat.  of  Ed.  6,  ch.  16.  Haralson  v.  Dickens,  2  Car.  L.  R.,  66, 
(1(53.)     (See  Rev.  Code,  ch.  77,  sec.  2.) 

3.  Every  transaction,  the  object  of  which  is  a  violation  of  pub- 
lic duty,  is  void ;  such  as  bribes  for  appointing  to  offices  of  pub- 
lic trust,  agreements  to  stifle  prosecutions  of  a  public  nature, 
and  the  like.  Hence  a  bund,  a  part  of  the  consideration  of 
which  is  an  agreement  not  to  prosecute  for  malicious  mischief, 
cannot  be  enforced  bv  action.  Oameron  v.  JIcFarland,  2  Car. 
L.  R.,  415,  (299.) 

4.  The  consideration  of  a  bond  can  be  impeached  at  law  only 
upon  the  ground!  that  it  is  against  an  express  enactment  or 
against  the  policy  of  the  law.  Where  a  bond  is  fairly  executed; 
proof  of  fraud  or  misrepresentation,  as  to  the  subject  matter 
of  the  consideration,  is  inadmissible  at  law.  Guy  v.  McLean,  1 
Dev.,  46. 

5.  Where  A  gave  a  bond  in  discharge  of  one  made  by  B,  evi- 
dence that  the  latter  was  obtained  by  fraud,  of  which  A  had  no 
notice,  is  inadmissible  in  an  action  upon  the  bond  given  by 
him.     Ibid. 

6.  While  securities,  which  are  declared  void  by  the  statutes, 
as  for  usury,  cannot  be  enforced  even  by  an  assignee  for  value 
and  without  notice,  a  bond,  though  void  at  common  law  for  tur- 
pitude of  consideration,  being  assignable  may  be  enforced  by 
such  assignee;  and  ther«  is  no  distinction  between  a  eonsid'era* 
tion  malum  in  se  and  malum  prohibitum.  Henderson  v.  Shannon, 
1  Dev,  147.    . 

7.  The  act  for  the  suppression  of  gaming  is  construed  liber- 
ally; and  if  any  part  of  the  consideration  of  a  bond  be  money 
won  at  play,  the  bond;  ie  Void  in  toto.  So,  if  upon  the  compro-- 
ruise  of  an  action  upon  a  gaming  contract  a  bond  be  taken,  it  is 
void,  notwithstanding  the  compromise,  if  money  won  at  an 
illegal  game-  formed  any  part  of  the  consideration  Turners. 
Peacock,  2  Dev.,  303, 

8.  To  an  action  of  debt  upon  a  bond  it  may  be  pleaded,  that 
the  bond  was  given  upon  the  consideration  of  the  plaintiffs 
using  bis  influence  to  procure  a  certain  marriage  for  ti  e  defen- 
dant; aud  if  the  issue  upon  such  plea  be  found  for  the  defendant, 


174  BONDS.— TV. 

it   will  'avoid  the  bond.     Overman  v.   Clemmons,  2  Dev.   and 
Bat,  185. 

9.  A  bond  taken  by  an  overseer  of  a  public  road,  from  a  person 
bound  to  work  "ii  the  road,  the  consideration  of  which  was  for 
wvii:  on  the  road,  done  by  the  overseer,  but  which  the  obligor 
ought  to  have  (lone,  is  not  void  on  account  of  such  considera* 
tion.      Woolard  v.  Grist,  3  Ired.,  453. 

10.  A  bond  given  for  money  lost  on  a  wager  as  tothe  result  of 
a  publii  ■  though  neither  party  be  a  voter,  is  based  upon 
an  illegal  consideration,  being  against  public  policy,  and  is 
therefore  void.     Bettis  v.  Reynolds,  1-  Ired.,  344. 

11.  A  bond  with  a  condition  that  the  plaintiffs  should 
"break  the  will"  of  a  deceased  person,  of  whom  the  ol 
were  the  next  of  kin,  or  "if  they  failed  to  break  the  will,  should 
pay  all  the  costs  of  the  suit  that  should  be  brought,"  is  void,  oh 
the  ground  of  maintence,  and  as  being  against  public  justice. 
Martin  v.  Amos,  13  Ired..  201. 

12.  There  is  no  rule  of  law,  which  directs  that  a  consideration 
is  to  be  inferred  from  the  fact  of  the  execution  of  a  sealed  instru- 
ment. A  bond  is  valid  without  a  consideration,  and  therefore, 
the  law  makes  no  inference  one  way  or  the  other,  as  to  the  con- 
sideration.  .  [3  [red.,  335. 

1  id,  the 

■  If  you 

.    .  is  my  handwrite,  and  is  a  ju  vill  paj 

■i      ie  plaintiff  was  hound  to  shovi    not  only 

the  i  ■    ■  '   i  he  note,  but  also  its  jui  ■  ■  i  tstancei 

f!  ii-.   : '      i  :,  ci    nsi  i'i  ■'■  -    '  ich  it  was 

.     o  j        *  i  !:••-,     i  bat  it  was  not    i  fraud  or 

,M  -    ise,  &c. ;  and  in  fact  that  it  was  a  just  not 

14.    V-  I  '  :     gained  and  sold   his  services 

yea  :    to  a   person  and  his  assigns,  and    ':      bargainee 

d  such  services,  taking  in  c<  eof  i    fond 

certain  sum  of  money,  it  was  held  that  the  transaction  was 

not  against  the  policy  of   law,  and  that  th    bom  void. 

t  Jones,  45. 

15    \\  b.ere  a        -  -  ed  to  be  forged,  and  tin     upposed 

took,  from  tl  ccusei  d  for  a 

certain  sum.  which  was  intern!  d  to  be  an  indei  ls1  the 

of  th<    bond  having  the  □         a  hi    posses- 

e  that 
Id  8  '  sum- 

thai  the   I  against 

licy  of  the   !:  -         Li  ■  ''  aiii 

had  expressly  declared  that  it -was  only  i   indemnity 

againsl  the  forge  Inote, ajidnottocompoi  Tkomp- 

.fines,   47. 

16.   Where  the  i  '  r  in  a  bond, 


BONDS. — rV,-V.  175 

that  a  relation  of  the  latter  had  committed  a  fogery,  and  proceured 
the  bond  in  question  to  be  executed,!  v  agr  ieingno1  to  prosecute 
fbrtheoff  ice  i1  is  void  as  being  dnsl  the  policy  of  the  law, 
whether  the  offence  had  been  committed  or  not.  Garner  v. 
Qualk    t  Jones,  223. 

17.  A  bond  given  by  a  slave  with  a  free  man  as  surety  is 
igain  i    the  poUcy  of  1  rid  is  void  as  to  both  obligors. 

..  -i  Jones,  233. 

18.  A  bond  given  upon  the  condition,  that  the  obligee  shall 
not  appear  as  a  prosecutor  or  as  a  witness  against  i!  d  fendant, 
in  a  ;riminal  proceeding  for  either  a  felony  or  misdemeanor,  is 
against  the  policy  of  the  law  and  therefore  null  and  void.  .'  owU 
ovi  r  v.  Thompson,  4  Jones,  485. 

19.  Where  A  won  from  B  a  justice's  judgment,  at  a  game  of 
cards  unfairly  played,  ami  took  from  the  defendants  in  thejudg? 
ment  a  bond  payable  to  himself  for  the  amount,  it  was  hdd,  in 
a  suit  on  the  bond,  that  it  was  founded  upon  a  consideration  con- 
trary to  the  policy  of  the  law,  and  was  therefore  mid.  Warden. 
v.  Plummer,  4  Jones,  524. 

20.  A  bond  given  to  one  in  failing  circumstances,  in  order  to 
chi  at  his  creditors,  by  giving  to  the  maker  a  plausible  pr<  texl 
for  claiming  his  property,  the  bond    1"  ;:  are  the 

ii  w  :i- colled  ion,  after   becoming   dm 

d  on   a   frai  ideration. 

Jones,  28. 

21.  Y\  lere  one  borrowed  of  a  m  which 
his  slave  had  been  allowed  to  earn  for  himself  in  and 

which  he  agreed  to  lend  out  for  the  use  of  the  sla-* 

that  it  was  not  againsl            :     ,    J    ■■           ii     !  gor,  in 

epayment  o  liabl 

in  an  action  of  debl  on  the  bond.      White  v.  I    ii   .  i  Ji  aes,  174. 

22.  A  bond  <  the  obligi  claim 
to  the  property  oJ   the  obligor,  for  the  expi  enab 

I    "11    Ml. 

lawful  □  it  void  even  een  the 

■.  Tuman,  <s  Jones,  436. 
14.) 

V.       WHEN    BONDS    MAY,    OB    MAY    NUT.    BE     , 

fl.  An  alteration  of  a  bond  in  a  material  part   i 
I    ig  m  oid  it;  but  ,■..  is  deolan  I  i    bond 

$12.50,  and  the  evidenc i  that  it  had  b  to  thai 

sum  ii-.. :n  $7.50,  the  plaintiff  cannot  in  that  a 
latter  sum,  because  his  evidence  does  not,  u 

■■■'  I    f'io  issue'  made  by  his  replical  j  \ 

:d  Bat.,  60. 


17G  BONDS— V. 

2.  A  person's  putting  his  name  to  a  bond  as  a  subscribing  wit- 
ness, without  the  knowledge  or  consent  of  the  obligor,  is  not 
such  an  addition  to,  or  alteration  of,  the  bond,  as  to  vitiate  and 
render  it  void.     Blaehvell  v.  Lane,  4  Dev.  and  Bat..  113. 

3.  The  obliteration  by  the  holder  of  a  bond  of  a  payment  en- 
dorsed on  it  does  not  destroy  the  validity  of  the  bond;  as  such 
an  entry  is  no  more  than  a  receit  and  constitutes  no  part  of  the 
bond.  And  whatever  weight  the  jury  may  give  to  the  fact  of 
such  obliteration,  in  making  up  their  verdict  upon  the  question 
of  payment,  there  is  no  legal  or  technical  presumption  of  pay- 
ment, in  such  case,  of  more  than  appears  in  tact  to  have  been 
paid.     Simms  v.  PaschaU,  5  Ired.,  2*6. 

4.  Where  a  bond  is  offered  in  evidence,  and  the  obligor  offers 
to  show  that  the  bond  has  been  declared  fraudulent  by  a  court 
of  equity,  and  that  it  should  be  surrendered,  the  evidence  is  in- 
admissible, because  the  bond  being  uncancelled  is  still  good  at 
law,  and  the  obligor  can  only  proceed  in  equity  to  enforce  the 
decree  by  process  of  contempt.     Davidson  v.  Sharpe,  (3  Ired.,  14. 

5.  When  one  of  the  subscribers  for  stock  in  the  Wilmington 
and  Manchester  Railroad  Company,  under  the  charter  granted 
by  the  Legislature,  in  1 84b',  gave  his  bond  for  the  first  instal- 
ment to  one  of  the  commissioners  appointed  to  take  subscrip- 
tions for  the  use  of  the  company,  instead  of  paying  the  cash  as 
required  by  the  charter,  it  was  held,  (Pearson  J.,  dissent iente) 
that  the  subscription  was  not  void,  and  that  the  obligee  could 
recover  on  the  bond.     McRae  v.  Russell,  12  Ired.,  224. 

6.  In  ascertaining  whe&er  an  instrument  was  intended  by  the 
maker  to  operate  as  a  bond  or  a  icill.  words,  which,  supposing  its 
character  to  be  established,  might  not  change  its  legal  effect,  or 
not  be  material  in  construing  it,  may  be  quite  material  in  ascer- 
taining its  character,  and,  hence,  though  an  alteration  or 
erasure  of  thenl  may  be  of  no  importance  in  the  former  point  of 
view,  yet  may  be  quite  material  in  the  latter.  Smiths.  Eason-,- 
4  joffles,  .'U. 

7.  \\  here  the  obligee  of  a  bond  attempted,  without  any  fraud- 
ulent purpose,  to  retrace  part  of  the  obligor's  name,  which  had 
been  blotted  with  ink  and  obscured,  ami  in  doing  so  misspelled 
it  but  not  so  as  to  alter  the  sound,  it  was  held,  that  the  bond  was 
liot  thereby  made  void;     Dunn  f.  Clements,  7  Jones,  58. 

8.  Where  a  promissory  note  of  a  firm  appeared  on  a  piece  of  pa- 
per, in  a  form  that  had  been  prepared  for  a  bond  with  sureties,  but 
the  scroll  enclosing  the  word  seed,  opposite  to  which  was  the  sig- 
nature of  the  firm,  was  scratched  and  cross^marked,  with  the  evi- 
dent design  to  obliterate  it;  it  tvas  held  that  the  presumption 
was  that  the  obliteration  took  place  before,  or  at  the  time,  the 
instrument  was  executed,  ami  that  the  plaintiff  was  not  bound 
to  show  it.     Norfleet'V.  Edwards,  7  Jones.  1  .">.">. 

9.  A  man  may  now,  contrary  to  the  former  rule  on  the  sub- 


BONDS.— V.-VI.-VII.  177 

Jeet,  aver  and  prove  his  own  lunacy  or  intoxication,  to  avoid  his 

1  mud.     Morvis  v.  Clay,  8  -Jones,  21(5. 

VI.       OF    THE    ASSIGNMENT    OF    BONDS. 

1.  The  assignment  of  a  bond,  not  negotiable  in  law,  vests  the 
property  in  the  assignee,  and  a  court  of  law  will  take  notice  of 
him  as  owner.     Long  v.  Baker,  2  Hay.,  12*.  (291.) 

2.  Tin.'  legal  effect  of  tin-  sale-  and  delivery  of  a  bond  without 
endorsement,  is  not  to  pass  the  legal  title  to  the  purchaser,  for 
the  endorser  may  release  it.  if  he  think  proper,  to  the  maker  of 
the  bond;  but  the  purchaser  is  constituted  the  agent  of  the 
vendor,  ami  the  money  is  vested  in  him  as  the  legal  owner,  the 
moment  it  is  collected;  for  the  chose  in  action,  of  which  the  ven- 
dor is  the  legal  owner,  is  extinguished  by  an  act  which  he  had 
authorized  to  be  done,  and  the  money  then  vests  in  the  pur- 
chaser as  legal  owner,  by  force  of  the  contract  of  sale,  which5 
thereliy  became  executed.  Therefore,  where  such  purchaser 
obtained  judgment  in  the  name  of  the  vendor,  and  the  sheriff 
collected  the  judgment,  and,  after  notice  by  the  purchaser  not 
to  do  so,  paid  the  money  to  the  vendor,  it  was  lu-hl  that  he,  the 
sheriff,  was,  notwithstanding  such  payment,  answerable  to  the 
purchaser  for  the  amount     Hoke  v.  Carter,  12  Ired.,  324 

VII.       I'ROCEEJNGS    IN    SUITS   TJPON    BONDS. 

1.  Under  the  plea  of  non  est  factum  it  cannot  be  given  in  evi- 
dence that  the  bond  was  delivered  as  an  esc* w-  There  should 
have  been  a  special  plea.  Awnymous,  2  Hay-  327,  (497,)  S.  P, 
SmaUwood  v.  Clark.  Tav..  281,  (117.)  But  see  contra  Moore  v. 
Parker,  1  Murph.  37,  S.'  C.  Conf.  Rep.,  553,  (573.) 

2.  When  a  bond  is  to  be  discharged  in  tobacco,  the  tobacco  is 
to  be  estimated  at  its  worth  at  the  time  it  is  to  be  delivered, 
unless  the  custom  of  the  merchants  is  different,  when  that  will 
prevail.     Litthjohn  v.  Gilchrist,  2  Hay,  393,  (589.) 

3.  If  a  h  i'il  sued  on  be  lost,  after  an  appeal  from  the  county 
court,  the  plaintiff  may  prove  the  contents  thereof  in  the  supe- 
rior court,  without  amending  his  declaration.     King  v.  Bryant, 

2  Hay.,  394,(591,)  S.  P.,  1  Murph.,  131. 

4.  In  a  suit  upon  a  penal  bond,  the  plaintiff  is  not  entitled  to 
recov  r  bi  yond  the  penalty.      Warden  v.  Nieteon,  1  Murph.,  275. 

5.  In  an  action  at  law  upon  a  lost  bond,  the  plaintiff  cannot 
be  admitted  to  prove  the  loss  by  his  own  oath,  hut  he  may  prove 
it  by  disinterested  witnesses.  Cotton  v.  BeasL  y,  2  Murph.,  259. 
S.  C.  1  Car.  L.  R.  239,  (19.) 

6.  [n  an  action  on  a  bond  conditioned  to  perform  the  deerei 
in  a  suit  in  which  A  and  B  were  defendants,  it  was  held  that  the 
record  of  a  suit  in  which  B  and  C  were  defendants  did  not  sup- 

12 


178  BONDS.— VJI.-VII1. 

port  the  breach  assigned,  and  that  it  could   apt    be   proved   b;y 
parol  that  the  name  of  G  was,  by   mistake,  inserted  in  the  bond 
in    the   place   of    the   name   of    A.      Coleman    v.    Grumpier. 
Dev.,  508. 

7.  In  a  suit  at  law  upon  an  injunction  bond,  it  is  not  necessar. 
for  the  obligee  to  state  in  the  declaration,  nor  prove  upon  the 
trial,  an  order  of  the  courl  of  equity  allowing  the  withdrawal 
of  the  bond,  and  permitting  a  suit  to  be  brought  upon  it.  Fulls 
v.  McAfee,  1  [red.,  139.  _ 

8.  Where  a  bond  is  given  to  "A  and  B,  and  the  rest  of  the 
justices,  &c,"  to  be  paid  to  the  "said  A  and  B,"  an  action  for  a 
breach  of  it  cannot  be  brought  in  the  name  of  A  and  15  alone, 
with; 'Hi  joining  the  other  obligees,  or  showing  that  A  and  B  are 
the  survivors.  It  is  true  a  payment  to  them  would  discharge  the 
obligation,  hut  if  it  lie  not  made,  suit  must  be  brought  by  the 
parties  with  whom  the  obligation  was  contracted.  Richardson 
v.  Jones,  1  [red.,  '2['<<. 

9.  In  an  action  on  a  bond  with  a  condition  to  convey  a  tract 
of  land,  it  is  not  necessary  for  the  plaintiff  to  bring  into  court 
the  price  agreed  to  he  given  for  the  land,  if  he  can  show  that 
he  had  complied  wit!,;  his  part  of  the  contract,  by  tendering  to 
the  other  party  what  he  was  hound  to  pay.  Lee  v.  Bussed,  * 
I  red.,  526. 

10.  In  an  action  <m  a  penal  bond,  the  judgment  should  be  for 
tlie  penalty  of  the  bond  and  the  costs.  The  damages  assessed 
form  no  part  of  the  judgment,  hut  should  )»■  entered  at  the  foot 
;pf  the  record,  and  endorsed  pn  the  execution  for  the  guidance 
of  the  sheriff.     Trice  v.  Turrentine,  13  [red., 

11.  The  Treasurer  of  the  Trustees  of  1);".  '  illege  not 
being  a  corporation  sole,  a  suit  on  a  bond  pay  him  "and 
his  successors"  cannot  be  broughl  in  the  n:  su  >  u 
It  must  l>e  brpught  in  the  name  of  the  obi  ;  ,i:;e;.  or  in 
that  of  his  personal  representative,  if  he  he  dead.  '■■'..  :  \. 
Hemphill,  1  Wjjast  •)i'<- 

Vlli.        PAYMENT    OR    SATISFACTION    of    BOXDS. 

1.  Twenty  years  raises  a  presumption  of  the  payment  oi  a 
bond,  liable  to  be  rebutted  by  proof  of  circumstances  to  account 
for  tl  e  delay.  Quince  v.  Ross,  2  Hav.  180,  (377,  |  S.  C.  Tav.  155, 
ttJfj'jSheppard  v.    Cook,  2   Hay.   -Ml.   (426;)    Ridley  v.    Thorpe. 

/hi,l.  "_'.'■'■.  (525.)      (The  time  is  now  reduced   to    ten   years.      See 
Rev.   Code.  eh.  65,   see.    IS.) 

2.  The  presumption  of  the  payment  of  a.  bond,  raised  by  a 
forbearance  of  twenty  years  (or  tor  ten  years  since  the  act  of 
1826,)  may  be  repelled  by  evidence  that  the  debtor  had  not  the 
means  nor  the  opportunity  of  paying.  And  the  repelling  of  the 
presumption  will  not  be  hindered  by  the  fact  that  the  debtor  had 


BONDS.— VITJ.  179 

;&  reversionary  interest  in  certain  slaves,  but  which  did  not  vest 
in  possession  until  a  short  time  before  the  suit  was  brought, 
when  it  did  not  appear  that  the  creditor  knew  of  the  existence 
of  tlie  reversionary  interest,  and  it  was  evident  that  it  was  not 
in  fact  applied  to  the  payment  of  the  debt  McKinder  v.  Litth- 
fohn,  1  Ired.,  66.     (Sim-  Rev.  Code,  eh.  65,  set   18.) 

3.  The  fact  of  the  insolvency  of  a  debtor,  from  the  time  his 
debt  became  due,  is  proper  evidence  to  be  submitted  to  a  jury, 
and  estimated  by  them  in  considering  whether  the  presumption 
of  payment  of  a  bond  under  the  act  of  1826  is  re'butted.  And 
this  answer  to  the  presumption   will   he  more  or  less  forcible, 

ling  to  the'  nature  and  degree  of  the  insolvencv.      }\\„id\. 
1)  ,  n,  1  ired.,  230. 

4.  The'  want  of  a  person,  against  whom  to  bring  suit,  rebuts 
the  presumption  of  the  payment  of  a  bond,  arising  from  forbear- 
ance to  sue.     Bide  v.  Bide,  2  Ired.,  87. 

5.  It  is  a  question  of  law  for  the  court  as  to  what  facts  will 
repel  the  presumption  of  payment  under  the  act.     Ibid. 

ii.  fhe'  declaration  of  a  defendant  that  she  "remembered  giv- 
ing the  note,  Imt  believed  she  had  paid  it,"  is  no  evidence'  to 
rebut  the  presumption  of  payment,  arising  under  the  act,  from 
the  lapse  often  years,  and  the  Judge  has  the  right  so  to  instruct 
the  jury,     HoUy  v.  Freemen,  2  Ired.,  218. 

7.  Where  a  debtor  relies  upon  the  presumption  of  the  pay- 
ment of  a  bond  arising  from  the  lapse  of  time',  and  the  creditor 
endeavors  to  rebut  that  presumption  by  showing  his  insolvency, 
the  creditor  may  also  oiler  in  evidence  the  circumstance  of  the 
debtor's  residing  at  a  great  distance  from  him,  as  tend] 
show,  that  although  the  debtor  may  have  had  property  for  :i 
short  time,  yet  the  creditor  had  not  an  opportunity  of  ki 

thai  Fact,  and  of  getting  satisfaction  outof  the  property.     McKin- 
der v.  Litilejohn,  1  [red.,  L98. 

8.  Where,  upon  the  sale  of  slaves  bj  order  of  a  court  ol  equity 
at  the  instance  of  a  guardian,  heb  came  the  purchaser,  and  gave 
his  bond  to  the  clerk  and  master  for  the  purchase  money,  and 
the  ward,  alter  he  became  of  age,  settled  with  his  guardian,  and 
took  back  the  slaves  with  the  assent  of  the  clerk  and  master, 
it  icas  held,  thai  in  a  suit  by  the  ward  in  the  name  of  the  clerk 
and  master  upon  the  bond,  these  facts  might  be  shown  a 
tisfaction  or  payment  of  the  bond,  at  law,  as  the  ward,  in  taking 
back  the  slaves  with  the'  consent  of  the  obligee  of  the  bond, 
acted  as  his  agent  in  receiving  satisfaction.      Kinney  ^ 

idge,  •">  Ired.,  34. 

'J.  The  acceptani fa   1  ill  of  exchange  by  the  obligee  of  a 

bond,  in  discharge  of  it,  will  amount  to  a  payment  of  the  bond. 
v,  Dunn,  i)  Ired.,  133. 
10.   In  an  action  on  a  bond,  payable  to  two  attorney  -,  which 
1  '■  een  due  mere  than  twenty  years,  the  defendants  relied  on 


180  BONDS--VIII. 

the  ) 'resumption,  and  to  rebut  it  the  plaintiffs  proved  that  one 
of  the  defendants  had  recently  said  that  he  had  paid  one  half  of 
the  bond,  and  the  other  half  was  relinquished  because  the  attor- 
ney, to  whom  it  was  payable,  had  relinquished  the  suit;  and  it 
ivas  held,  that  the  declarations  were  not  sufficient  to  rebut  the 
presumption.     Henri/  v.  Smith,  7  Ired.,  348. 

11.  In  an  action  on  a  bond  where  evidence  was  given  that  the 
bond  was  td  be  delivered  up,  when  the  obligor  paid  the  costs  of 
a  certain  suit,  it  was  held,  that  the  evidence  was  inadmissible  to 
show  that  the  bond  was  a  conditional  one,  but  that  it  was 
proper  to  show  that,  by  the  agreement  of  the  parties,  the  bond 
was  to  be  paid  in  whole  or  in  part,  by  the  payment  of  the  costs 
of  the  suit,  and  that  therefore,  the  obligor,  if  he  paid  the  costs, 
was  entitled  to  a  credit  on  the  bond  pro  tanto.  Walters  v.  Wal- 
ters, 10  Ired,  145. 

12.  Where  A  gave  B  a  bond  for  $50,  and  at  the  same  time  it 
was  agreed  by  parol,  that  whenever  A  paid  certain  costs  in  a 
suit  then  pending  between  the  parties,  the  bond  should  be  sur- 
rendered and  given  up,  and  A  afterwards  paid  the  costs;  it  was 
held,  that  this  was  competent  and  sufficient  evidence  of  the  dis- 
charge of  the  bond.      Walters  v.  Walters,  12  Ired.,  28. 

13.  When  a  person  has  been  sued  on  his  bond  as  administra- 
tor, within  ten  years  after  the  relator's  coming  of  age,  he  hav- 
ing been  an  infant  at  the  time  of  the  execution  of  the  bond,  the 
administrator,  though  the  bond  was  given  more  than  ten  years 
before  action  was  brought,  cannot  take  any  advantage  of  the 
act  relating  to  presumption  of  payment.  Threadqill  v.  West,  13 
Ired,  310. 

14.  The  presumption  of  the  payment  of  a  bond,  arising  under 
the  act,  from  a  lapse,  of  ten  years,  is  rebutted  by  the  payment  of 
a  part  of  the  sum  before  the  expiration  of  the  ten  years ;  and 
this  applies  as  well  to  joint  obligors,  who  are  sureties,  as  to  the 
principal  who  has  made  the  payment,  McKeethan  v.  Atkinson, 
Jones,  421. 

15.  Where  one  of  the  obligors  in  a  bond  said,  "I  signed  the 
note  but  will  never  pay  it,"  this  will  not  rebut  the  presumption 
of  payment  arising  from  the  lapse  of  time;  for  though,  it  may  af- 
ford proof  that  he  did  not  pay  it,  it  does  not  follow  that  his 
co-obligor  had  not,      Wilfong  v.  Gline,  1  Jones,  499. 

Hi.  Where  A  and  1'.  had  come  to  a  settlement,  and  agreed 
upon  a  particular  sum,  to  which  B  was  entitled  as  a  credit  upon 
a  oond  held  against  him  by  A,  which  was  entered  accordingly, 
and  afterwards  upon  a  complaint  by  A,  that  the  credit  was  too 
large,  B  said,  "go  and  alter  it,"  and  if  you  can  show  me  the  mis- 
take it  will  be  all  right,  ami  if  not  the  credit  must  be  put  back, 
•or  altered  hack,"  and  A  did  alter  it ;  but  it  was  held,  in  a  suit  on 
fche  bond,  that  B  was  entitled  to   the  credit  first  entered,  as  a 


BONDS.— VIII.  181 

payment,  unless  A  had  shown  before,  or  could  show  on  the  trial 
that  there  wns  a  mistake.     Rogers  v.  Davenport,  2  Jones,  138. 

17.  If  a  debtor  have  the  means  or  ability  to  pay  off  a  bond, 
during  twelve  or  fifteen  years  before  suit  brought,  it  is  a  suf- 
ficient answer  to  the  proof  of  reputed  insolvency,  which  is  relied 
on  to  repel  the  presumption  of  payment  arising  from  lapse  of 
time,  although  the  debtor  may  not  have  been  able  to  pay  his 
other  debts  during  that  time      Walker  v.   Wright,  2  Jones,  155. 

18.  The  law  gives  to  the  lapse  of  time  an  atificial  and  techni- 
cal weight, beyond  that  which  it  would  naturally  have,  as  a  mere 
circumstance  bearing  upon  the  question  of  payment.     Ibid. 

19.  A  substantial  payment  made  by  one  of  several  obligors  in 
a  bond,  in  the  absence  of  the  others,  before  the  lapse  of  the  time 
necessary  to  raise  the  presumption  of  payment,  will  prevent 
such  presumption  from  arising,  as  well  in  respect  of  the  other 
obligors,  as  of  him  who  made  the  payment,  Lowe  v.  SaweU,  3 
Jones,  67. 

20.  A  presumption  of  payment  arising  from  the  lapse  of  time, 
in  favor  of  one  of  several  obligors,  is  payment  as  to  all;  and  this 
presumption  is  not  rebutted  by  a  declaration  of  the  principal 
obligor,  that  he  had  put  money  into  the  hands  of  his  surety  with 
which  to  pay  the  bond,  PearsaU  v.  Houston,  3  Jones,  346. 

21.  Where  a  bond  has   been  standing  for  ten  years,  and  the 

§  resumption  of  payment  from  lapse  of  time  is  relied  on,  contra- 
ictory  and  false  statements  made  by  the  defendant,  as  to  the 
time,  place  and  manner,  in  which  he  alleged  the  bond  had  been 
discharged,  will  not  repel  the  presumption.  Loice  v.  SoweU,  4 
Jones,  235. 

22.  Where  it  appeared  that  acredit  was  entered  by  the  obligee 
on  a  bond,  before  the  expiration  of  ten  years  after  it  was  exe- 
cuted, and  within  ten  years  before  the  suit  was  brought,  and 
the  obligee  died  before  the  expiration  of  ten  years  from  the  exe- 
cution of  the  bond;  it  was  held  to  be  proper  evidence  to  be  sub- 
mitted to  the  jury,  for  the  purpose  of  rebutting  the  presumption 
of  payment  from  lapse  of  time.  Williams  v.  Alexander,  6  Jones, 
137.   '  (Overruling,  S.  0.  in  5  Jones,  162.) 

23.  Where  the  members  of  a  firm  gave  a  bond,  executed  by 
each,  for  a  debt  of  the  firm,  and  property  was  delivered  by  them 
fetnd  accepted  by  the  obligee  as  a  payment  thereof;  it  was  held, 
that  the  1 1,  nid  was  thereby  discharged,  and  that  it  was  not  in  the 
power  of  one  of  the  obligors,  by  agreement  with  the  obligee,  to 
withdraw  the  payment,  and  put  the  bond  in  force  again.  Jar- 
mi  m  v.  Ellis,  7  Jones,  77. 

24.  Where,  to  repel  the  presumption  of  payment  arising  from 
the  lapse  of  time,  it.  was  proved  that  the  defendant  said  he 
"owed  the  plaintiff  a  little  note,  but  she  might  wait,"  and  at 
another  time  that  he  "owed  her  a  note;''  it  washeld  to  be  proper 
to  le;M-e  it  to  the  jury  to  say  whether  the  note  in  question  was 


182  BONDS— VIII.— BOOK  DEBT. 

the  one  alluded,  and  if  it  were,  the  plaintiff  ought  to  recover.  . 
Hinsaman  v.  Himaman,  7  Jones,  510. 

See  (Bonds — Of  the  construction  of  1  minis  and  of  the  condi- 
tion, 2-4,)  (Evidence — -Presumptions,  5-32.)  (Lex  loci,  14.) 
(Poyment,  4-21.) 


BOOK  DEBT. 

1.  The  plaintiff,  under  the  book  debt  law  of  1756,  may  pri >ve  F<  tf 
work  and  labor  done  by  his  slaves,  and  also  for  goods  sold  and 
delivered  for  the  rise  of  the  defendant  by  sundry  persons,  and 
paid  for  by  the  plaintiff  Mitchell  V.  Clarke,  Mar.  25,  (13.)  (See 
Bev.  Code,  ch.  15.) 

2.  The  executor  of  a  deceased  attorney  was  permitted,  under 
the  book  debt  law,  to  prove  an  account  for  fees,  by  the  testator's 
books.     Charlton  v.  Lowry,  Mar.  26,  (14.) 

3.  Defendants  may  prove  sets  off  under  the  book  debt  law. 
Thomegeux  v.  Bell,  Mar.  44,  (38.) 

4.  Where  a  party  swears  to  his  account,  under  the  book  debt 
act,  the  opposite  party  may,  in  reply,  prove  him  to  be  unworthy 
of  credit  on  his  oath.  The  act  only  removes  the  incompentency 
of  the  party  who  offers  to  prove  his  Look  account,  but  leaves  his 
credibility  as  a  witness  to  be  determined  by  the  jury.  Kitchen 
v.  Tyson,  3  Murph.,  314. 

5.  If  it  appear  from  the  books  that  the  articles  were  furnished 
more  than  live  years  before  the  suit  was  brought  evidence  of  an 
acknowledgement  of  the  account  within  three  years,  will  revive 
the  original  promise,  because  such  acknowledgment  furnishes 
evidence  that  the  presumption  on  which  the  statue  is  founded 
does  not  exist  in  the  particular  case.  Kiser  v.  Howies,  2- 
Hawks  539. 

6.  Where  an  administrator  takes  the  book  debt  oath,  and' 
swears  that  the  original  entry  is  in  the  handwriting  of  a  person 
who  has  not,  after  diligent  enquiry,  been  heard  of  for  seven 
years,  and  that  he  knows  of  no  person  who  can  prove  his  hand- 
writing, it  is  sufficient  proof  of  the  book  debt.  Stevelie  v.  Green- 
lee, 1  Dey.,  317. 

7.  A  justice  has  power  to  administer  the  book  debt  oath  on  a 
trial  before  him.     Colbert  v.  Piercy,  •">  Ired.,  77. 

8.  It  is  competent  for  a  party,  under  the  book  debt  law,  to 
swear  to  the  price,  as  well  as  the  delivery  of  the  articles  stated 
in  his  account.  Audit  is  competent  lor  the  opposite  party  to 
cross-examine  the  person  taking  his  oath  under  that  law,  both 
as  to  the  articles  and' the  prices  charged  with  a  view   '<>  e.ontm- 


BOOK  DEBT.— BOUNDARY.— T.  183 

diet  or  discredit  him,  as  he  might  do  in  regard  to  any  other  wit- 
ness swearing  to  his  account,  the  party  so  swearing  being  con- 
sidered a  witness  in  his  own  cause.     Ibid. 

it.  In  all  rases  under  the  book  debt  law,  it  is  the  duty  of  the 
party  who  wishes  to  prove  his  debt  by  his  own  oath,  to  produce 
the  orignal  account,  when  notice  to  that  effect  lias  been  given 
him  by  the  other  party;  and  a  voluntary  destruction  of  the  orig- 
inal will  in  it  authorize  the  introduction  of  a  copy.  Goxe  v. 
SJceen,  '■>  Ired.,  443. 

10.  Und  ir  the  book  debt  law,  a'  plaintiff  may  prove  by  his 
own  oath  a  balance  due  to' him  of  sixty  dollars  or  under,  although 
his  account  produced  appears  to  have  been  originally  for  more 
than  sixty  dollars,  t  is  reduced  by  en  drtS  belo$  that  amount. 
McWilliams  v-  Cosby,  i  Ired.,  111). 

11.  Under  the  book  debt  law.  in  order  to  entitle  the  party  to 
recover,  he  must  swear  not  only  that  he  "sold,"  but  also  thai  he 
actually  '•delivered"  the  articles,  for  the  price  of  which  the  suit 
is  brought;     AdMnson  v.  Simmons,  11  Ired.-,-  416. 

1'2,  Under  the  book  debt  act,  the  book  and  oath  are  only  evi- 
dence id'  small  articles,  which  have  been  delivered  within  two 
years,  but  they  are  nr.t  evidence  that  the  book  contains  all  the 
credits  and  a  full  and  true  account  of  ah  the  di  alings  between 
the  parties,  so  as  to  show  thatnothing  is  due  to  the  other  party, 
and  to  disprove  all  of  his  chain,  except  such  items  as  are  stated 
in  the  book,  upon  the  ground  that  it  contains  all  just  credits, 
and  consequently  sets  forth  all  the  amount  to  which  the  other 
party  is  entitled     Alexander  v.  Smoot,  L3  Ired.,  461. 

See  (Justices  of  the  Peace — Of  their  jurisdiction,  judgment 
and  execution,  108.) 


BOUNDARY. 

I.  Wbose  province  it  is  to  ascertain  I       IV.  Lines  actually  run  and  rHarked. 
boundary.  V.  Course  and  distance  called  lor. 

II.  Natural  objects  tailed  for.  !       f-f.  Parol  evidence  in  boundary  cases. 
Ill    Lines  of  another  tract  called  for. 

I.       WHOSE   PROVINCE    IT    IS    TO   ASCERTAIN    BOUNDARY. 

I.  Boundary  is  a  question  of  fact,  or  at  least  of  law  and  fact 
Combined,  and  is  to  be  decided  by  the  jury  and  not  the  court; 
mil  questions  of  boundary,  like  other  questions  of  fact,  depend 
1i>"]i  their  own  particular  circumstances,  when-  every  shade  of 


184  BOUNDARY.— I-II. 

evidence,  and  every,  the  most  minute,  circumstance  may  product- 
its  effect.  The  artificial  rules,  respecting  boundary,  are  in- 
tended only  as  guides  in  the  application  of  circumstances,  and 
not  as  fixed  laws  to  be  applied  indiscriminately  in  all  cases. 
Orbisan  v.  Morrison,  3  Murph,  551. 

2.  In  questions  of  boundary,  as  in  others,  it  is  the  province  of 
the  court  to  expound  to  the  jury  the  law  connected  with  the 
facts  under  discussion,  but  not  to  express  an  opinion  on  the 
facts,  as  that  is  prohibited  by  the  act  of  1796.  Ibid.  S.  P. 
Tate  v.  Greenlee,  3  Murph.,  556.  (See  Kev.  Code,  ch.  31, 
sec.  130.) 

3.  What  are  the  termini  or  boundaries  of  a  grant  or  deed  is 
a  matter  of  law  for  the  court;  but  where  they  are  is  matter  of 
fact  for  the  jury.     Totem  v.  Paine,  4  Hawks,  64. 

4.  The  meaning  of  a  deed,  as  to  what  land  it  covers,  is  a  ques- 
tion of  law  to  be  decided  by  the  court.  What  are  the  termini  of 
the  lines  is  a  point  of  construction;  where  they  arc  is  a  question 
of  fact.  Therefore  (7  was  held  to  be  error  for  the  court  to  in- 
struct the  jury,  that  where  there  was  an  irreconeileable  differ- 
ence between  a  nutural  boundary  and  a  marked  line,  it  was 
matter  of  evidence  and  not  of  construction.  Hurley  v.  Morgan,  1 
Dev.  and  Bat.,  425. 

5.  Where  the  question  on  the  trial  was  as  to  the  boundary  of 
a  town  lot,  and  the  deed  under  which  one  of  the  parties  claimed 
contained  two  descriptions,  one  saying  it  "adjoined"  a  certain 
other  lot,  and  the  other  giving  a  different  statement,  the  court 
did  not  err  in  leaving  it  to  the  jury  to  decide  which  description 
they  thought  was  intended  by  the  parties  to  the  deed;  whether 
the  parties  in  using  the  word  "adjoining"  might  not  have  meant 
"near,"  as  the  word  is  sometimes  used  in  common  parlance. 
Massey  v.  Belisle,  2  Ired.,  170. 

6.  What  are  the  boundaries  of  a  tract  of  land  is  a  question  of 
law,  being  a  mere  question  of  construction;  but  where  a  line  is, 
and  what  are  the  facts  must,  of  course,  be  found  by  the  jury. 
Burnett  v.  Thompson,  1.".  [red.,  379. 

7.  What  are  the  boundaries  of  a  tract  of  land  is  a  question  of 
law  for  the  court;  but  tela  rr  those  boundaries  are  is  a  question 
of  fact  for  the  jury.     MarshaM  v.  Fisher,  1  Jones,  111. 

See  (Boundary — Natural  objects  called  for,  18.) 

II.       NATURAL   OBJECTS    CALLED    FOR. 

1.  The  last  line  being  "thence  along  the  river  to  the  begin 
uing,"  the  river  is  the  boundary,  although  the  line  coming  to- 
wards tin-  river  called  for  a  "white  oak"  as  its  termination, 
it  being  half  a  mile  distant  from  the  river.  Sandifer  v.  Fos- 
ter,  1  Hay.,  237,  (271.)  S.  P.,  Hartsfield  v.  Westbrook,  Ibid,  25S, 
(2!) 7.)     MePhaul  v.  Gilchrist,  7  Ired'.,  169. 


BOUNDARY.— II.  185 

2.  When  a  natural  boundary,  and  courses  and  distances  are 
all  given  in  a  deed,  the  natural  boundary  will  prevail,  in  case 
of  a  variance;  and  in  doubtful  cases,  a  regard  for  this  preference 
must  always  be  observed.      Pollock  v.  Harris.  1  Hay.,  2"c'.  (201.) 

S.   P., -v.  Beaitty,  Ibid,  376,  (432.)     Withersjpoon  v.   Blanks, 

Ibid,  496,  (571|j)  S.  C,  2  Hay.,  75,(242)  and  Tay.  110,(64.) 
Hammond  v.  McOlaughon,  2  Hay.,  07,  (234.)  S.  0.,  Tay.  136, 
(84,)  Swain  v.  Evil,  2  Hay.,  139,  (312)  and  179,  (374.) 

3.  The  natural  boundary  is  to  be  followed  if  it  can  be  ascer- 
tained; but  if  the  jury  doubt  which  is  the  natural  boundary, 
and  are  satisfied  from  the  evidence  that  the  artificial  boundary 
was  considered  bv  the  proprietor  the  true  one,  they  may  so 
find.     Sasser  v.  Afford,  2  Hay.,  148,  (322.) 

4.  The  lines  called  for  were  "east  177  poles  to  an  oak,  thence 
southwardly  the  various  courses  of  the  river."  There  was  a 
marked  oak  at  the  end  of  the  distance;  and  the  river,  from  the 
point  where  a  direct  line  from  the  oak  would  intersect  it,  ran 
southwardly.  If  the  east  line  go  directly  to  the  river  from  the 
point  of  intersection,  the  river  would  run  westwardly  until  op- 
posite the  oak.  The  jury  were  instructed  to  find  the  line  to  the 
oak,  and  thence  southwardly  to  the  river,  if  they  believed  that 
to  be  the.  real  line  run  when  the  original  survey  was  made. 
Pendt  r  v.  Coor,  Tay.  315,  (140.)     S  C,  2  Hay.,  183.  (382,) 

5.  Where  the  patent  described  the  land  as  lying  on  the  north 
side  of  a  river,  and  the  line  in  dispute  called  for  a*  "a  pine  on 
the  marsh  branch,  then  along  the  said  branch  320  poles,  thence 
to  the  beginning,"  and  the  branch  meets  the  river  at  a  shorter 
distance,  it  was  held  that  the  branch  was  the  boundary,  and  the 
mouth  of  it  the  corner  of  the  land  covered  by  the  patent,  and 
that  the  distance  was  to  be  disregarded.  Carroway  v.  Withering- 
ton,  N.  C.  Term  1!.,  275,  (694.) 

(5.  Whenever  a  natural  boundary  is  called  for  in  a  patent  or 
deed,  the  line  must  terminate  at  it,  however  wide  it  may  be  of 
the  course  and   distance  specified      Cherry  v.  Slade,  3   Murph., 

7.  Wherever  the  particular  description  in  a  grant  restrains 
the;  general  cue  to  natural  boundaries,  the  general  description  is 
confined  to  them,  when  they  can  he  shown;  for  it  is  the  legiti- 
mate object  of  a  particular  description  to  designate,  with  more 
certainty  and  precision,  what  the  parties  suppose  to  be  vague 
and  ambiguous  in  the  general  bne.  Tatum  v.  Saivyer,  2  Hawks, 
226. 

■S.  A  call  for  "  171  poles  to  Roanoke  river."  terminates  at  the 
margin  or  bank  of  the  river,  without  regard  to  distance:  and 
the  intersection  of  the  line  with  the  river  is  the  point,  from 
which  the  next  line  commences.    Hbrton  v.  Rascoe,  '■>  HawKS,  21. 

'.).    Lines    and    courses   described   as    "north    12°    east  530 


1*6  BOUNDARY.—  II, 

poles,    then    alone;    the   thoroughfare,    &c,    shall   run    to    the 
thoroughfare,  without  regard  to  course  and  distance.    Ibid. 

10.  Where  there  is  a  call  tor  natural  objects,  and  also  for 
course  and  distance",  the  former  are  the  termini,  and  the  latter 
merely  pointers  or  guides  to  it;  and  therefore,  where  the  natural5 
object  is  unique,  or  has  properties  peculiar  to'itself,  course  and 
distance  are  disregarded;  but  where  there  are  several  natural 
objects,  each  answering  the  description,  course  and  distance  may 
be  adverted  to,  in  order  to  ascertain  which  is  the  true  object; 
for  in  such  case  they  do  not  control  a  natural  boundary,  but  only 
serve  to  explain  a  latent  ambiguity.  Tatem  v.  Paine,  4 
Hawks.  64. 

11.  A  call  in  a  grant,  from  a  pond  or  river  "west  up  the  river 
to  a  stake,"  is  in  law  equivalent  to  "with  the  river,"  and  the  line 
must  pursue  the  course  of  the  stream;  this  sense  of  the  words 
might  possibly  be  controlled  by  a  call  for  a  line  of  marked  trees,- 
or  a  visible  and  permanent  marked  corner,  and'a  meaning  there- 
by given  to  them  equivalent  te  "up."  but  not  "'with,"  the  river, 
but  by  no  call  less  certain  can  it  be  controlled.  Rogers  v. 
Mabt    1  Dev.,  1st). 

12.  A  swamp  is  a  natural  boundary,  and  if  a  deed  calls  for 
one,  the  course  ami  distance  must  be  disregarded.  But  in  such 
a  call,  whether  the  margin  of  the  swamp,  or  the  run  of  it,  is 
intend  d,  is  a  matter  of  fact  which  is.  upon  the  evidence  offered, 
to  be  found  By  the  jury.     Brooks  v.  Britt,  4  Pev.,  481. 

13.  As  a  general  ride  in  questions  of  boundary,  a  natural 
object  has  a  preference  over  marked  lines  and  corners  and  will 
control  them,  When  the  natural  object  is  of  such  a  nature  as 
cannot  easily  be  mistaken  by  the  parties,  either  in  name  or  situ- 
ation, as  in  the  case  of  a  river  or  creek.  But  the  reason  of  this 
rule  does  not  apply  to  ver\  small  streams,  which  either  have  no 
names,  or  have  formerly  had  a  different  name  from  that  which 
they  now  bear.  With  respect  to  these  it  is  open  to  evidence, 
which  stream  the  parties.meant  by  a  particular  name,  and  the 
jury,  if  satisfied  of  the  fa<  f.  from  pr&bf  of  possession  or  the  like, 
may  find  a  stream  to  be-  the  one  mean*  although  not  the  one 
bearingthe  name  mentioned  in  the  deed:  Hurley  v.  Morgan,  1 
Pev.  and  Bat.,  425. 

44.  Where  a  grant  called  for  a  "beginning  at  a  pine  at  the 
Sound  side,  and  running  thence  along  the  sound  and  marsh  S. 
36°  E.  220  poles,  to  the  head  of  a  bay,  which  Avas  out  of  the 
sound,"  it  was  helil,  that  the  sound  was  the  boundary:  and  that 
such  a  call  could  not  be  departed  from  to  follow  mere  course 
and  distance,  under  any  circumstances.  Slade  v.  A'iW,  2  Dev. 
and  Bat.,  (it. 

1">.   Where  a  deed  calls  for  a  line  alone,-  the  bank   ot  a  river, 

and  after  the  dale  of  the  d 1  the  bank  of  the  river  is  changed 

by  excessive  floods  producing  violent  and.  visible   alterations 


BOUNDARY.— II.  18?" 

the  boundary  will  not  shift  with  the  change  of  the  river,  but 
will  be  where  the  bank  was  at  the  date  of  the  deed.  Lynch  v 
Men,  i  Dev.  and  Bat,  62. 

16.  Where  a  deed  contains  a.  double  description  "along  th< 
river,"  and  "a  marked  line,"  the  river  is  the  more  important 
description,  and  will  control  the  marked  line.     Ibid, 

17.  If  the  call  of  a  grant  be  '-up  a  pocosin  and  branch  N.  71 
W.  45  poles,  thence  al'OUg  said  branch  and  joining-  Keith's  land 
N.  15  W.  98  poles,  thence  N  66  W.  87  poles  to  a  gum  near -the 
branch,"  and  there  is  nothing  to  show  a  discrepancy  in  the  ob- 
jects called  for,  to  wit,  the  poeosin  and  branch,'- the  only  qtie&- 
tion  is.  whether  the  branch,  as  a  distinct  natural  object,  in  ltsell 
defined  and  appropriate  for  the  lint.'  of  a  ]  atent.  is  tb  be  followed 
in  preference  to  the  mathematical  description  by  course  and  dis- 
tance, and  if  is  clearly  settled  that  it  is.  Sedan  v.  Chesnut,  4 
Dev.  and  bat..  335. 

18.  The  construction  of  a  deal,  upon  the  question  of  boundary, 
is  as  much  a  legal  question  as  upon  any  other  point,  although  it 
is  the  province  oi'  the  jury  to  say  which,  or  where  situate,  may 
be  the  particular  tree,  stone  or  stream  called!  for;  and  it  is  a  prin- 
ciple of  construction  clearly  settled  that  a  natural  and  permanent 
object  shall  be  (he  boundary  in  preference  to  the  line  designated 
by  course  and  distance.  It  is  true,  that  the  call  tor  a  natural 
boundary  may  he,  itself  vague  or  imperfect,  or  even  contradic- 
tory; as  for  a  stream,  where  there  arc  two  of  the  same  name,  or 
it  be  uncertain' which  oi' the  two  bears  the  name,  or  for  two 
natural  objects,  for  example  a  branch  and  pocosin,  which,  upon 
evidence,  appear  not  to  be  identical,  but  to  be  at  different  places; 
then,  necessarily,  the  ease  is  open  for  evidence  to  the  jury,  as  to 
which  was  the  object  meant,  and  by  which  the  survey  was 
actually  made.      Ibid. 

19.  AVhen  a  grant  describes  a  tract  of  land  as  lying  on  a  river, 
and  beginning  below  the  mouth  of  a  branch,  and  the  last  line 
but  one  calls  for  a  tree  on  the  river,  and  thence  up  the  river  to 
the  beginning,  these  termini  independent  of  the  other  calls  of 
the  grant  for  the  branch,  clearly  fix  the  beginning  of  the  survey 
on  the  river.     Hid. 

20.  A  grant  of  land,  bounded  in  terms  by  a  river  or  creek, 
not  navigable,  carries  the  land  of  the  grantee  usque  ad  fiiwm 
a ji'<i>.  I  hat  is  to  the  middle  or  thread  of  the  stream.  WiUiams 
v.  Buchanan,  1  Ired.,  535. 

21.  A  savanna,  which  is  a  natural  open  meadow,  not  uncom- 
mon in  the  lower  part  of  the  State,  is  a  natural  boundary,  in  the 
sens--  in  which  that  term  is  used  in  the  construction  of  deeds. 
Staplefordv.  Brinson,  2  Ired..  .'ill. 

22.  Where  a  grant  called  for  certain  courses  and  distances. 
and  from  the  third  corner:  '-thence  X.  87c  W.  111!)  poles  to  a 
hickory,  thence  the  courses  of  the  swamp  to  the  beginning."  it 


188  BOUNDARY.— II. 

was  held,  that  though  the  distance  from  the  third  corner  to  the 
swamp  gave  out  nine  chains  from  the  swamp,  and  no  hickory 
was  to  lie  found,  nor  was  there  any  proof  of  its  existence,  yet 
the  line  should  be  extended  to  the  swamp,  and  then  pursue  its 
courses  to  the  beginning;  and,  further,  that  the  declaration  of 
the  owner  of  the  land,  that  his  fourth  line  ran  from  the  termi- 
nation of  the  distance  mentioned  in  the  third  line,  straight  to 
the  beginning,  did  not  of  itself  divest  him  of  his  title  to  the 
land,  lving  between  that  line  and  the  swamp.  McPhaul  v. 
Gilchrist,  7  Ired.,  169. 

23.  Where  a  grant  begins  on  a  lake,  and  then  runs  a  certain 
course  and  distance,  thence  "with  the  windings  of  the  lake 
water  to  the.  beginning ;"  it  loas  held  that  though  the  distance 
mentioned  in  the  third  line  should  fail  before  the  lake  was 
reached,  yet  it  must  be  continued  in  a  direct  course  to  the  lake, 
and  then  the  boundary  must  be  along  the  lake.  President  and 
Directors  of  the  Literary  Fiend  v.  Clark,  9  Ired.,  58. 

24.  A  plat,  annexed  to  a  grant,  cannot  control  the  calls  of  the 
grant,  where  it  does  not  lay  down  a  natural  boundary  therein 
called  for.     Ibid. 

25.  Where  a  swamp  is  called  for  in  the  description  of  a  grant, 
and  the  question  is  left  doubtful  which  of  three  conflicting  local- 
ities is  the  proper  one,  a  call  for  a  course  "  westwardly,"  to  the 
swamp  does  not  mean  necessarily  a  "  clue  west  course,"  but  the 
jury  may  be  governed  by  other  considerations  in  seeking  for  the 
true  locality  of  the  terminus  of  the  line  and  the  swamp.  Spruill 
Davenport,  1  Jones,  203. 

26.  A  call,  from  the  mouth  of  a  swamp  "down  a  swash,"  to 
the  mouth  of  another  swamp,  was  held  to  mean  a  straight  line 
from  one  point  to  the  other,  through  the  swash.  Burnett  v. 
Thompson,  6  Jones,  210.     S.  ('.  and'S.  P.,  7  Jones,  407._ 

27.  Where  a  creek  is  called  for  in  a  deed,  as  the  terminus  of  a 
line,  and  there  is  no  diverging  course,  and  no  particular  object 
on  the  creek  called  for,  the  creek  must  he  reached  by  the  short- 
est direct  route.     Caraway  v.  Clancy,  6  Jones,  361. 

28.  Where  a  deed  called  for  "an  old  line  down  a  bottom  to  a 
forked  white  oak,"  and  there  was  no  evidence  as  to  the  old  line, 
but  there  was  evidence  as  to  the  existence  of  two  bottoms  ex- 
tending from  the  point  designated  towards  the  place  aimed  at, 
it  was  held  to  lie  proper  lor  tin-  judge  to  leave  it  to  the  jury,  to 
determine  which  of  the  two  bottoms  was  the  one  called  for. — 
Hill  v.  Mason.     7  Jones,  551. 

29.  In  ascertaining  the  boundaries  of  a  tract  of  land,  one  kind  of 
natural  objects  called  for  is  not,  as  a  matter  of  law,  entitled  to 
more  respect,  or  of  more  importance  than  another.  Pattern  yi 
Alexander,  7  Jones,  603. 

30  Where  a  witness  testified  that  a  certain  unmarked  pine 
had  been  pointed  out  to  him  by  a  person,  since  dead,  as  the  cor-- 


BOUNDARY.— II.-III.  189 

ner  of  a  certain  grant,  and  there  were  five  particulars^  in  which 
the  description  in  the  grant  calling  for  natural  objects,  were  sup- 
ported by  the  facts  proved;  ittuas  held,  that  it  was  error  in  the 
judge  to  charge  that  there  was  no  evidence  of  the  location  of  the 
grant.     McDowell  v.  CashiU,  8  Jones,  158. 

31.  Whether  the  rule,  that  where  an  unnavigable  stream  or 
public  highway  is  called  for,  the  line  runs  to  the  middle  of  the 
stream  or  highway,  applies  to  a  private  way  quaere ?  Hays  v. 
Asketo,  8  Jones,  226. 

32.  Where  the  beginning  corner  of  a  deed  was  a  tree  stand- 
ing on  the  edge  oi  an  avenue,  and  thence  several  calls  to  a  road, 
and  "thence  down  said  road  to  my  avenue,  and  thence  down 
my  avenue  to  the  beginning,"  "reserving  forever  twenty  feet  for 
my  avenue,"  it  was  held,  that  this  reservation  explained  the 
meaning  "f  the  grantor  to  be,  to  run  to  the  middle  of  the  ave- 
nue, ami  thence  down  it  in  the  middle,  to  a  point  opposite  to  the 
beginning,  and  then  to  the  beginning.     Ibid. 

See  (Boundary — Course  and  distance,  11.) 

III.       LINES    OF   ANOTHER    TRACT    CALLED    FOR. 

1.  If  the  line  of  another  tract  be  called  for,  and  the  distance 
called  for  will  not  reach  it,  still  you  must  go  to  the  line  called 
for,  if  it  can  be  found.  Miller  v.  White,  2  Hay.,  160,  (345,)  S. 
C.  Tar.,  161,  (100)  and  309,  (135.)  S.  P.  Smith  v.  Mufpheu,  2 
Hay.,* is:;.  (382.) 

2.  The  call  was  a  certain  course  and  distance  to  A  B's  line, 
thence  a  certain  course  and  distance  "along  his  line"  to,  &c. 
In  this  latter  line  the  course  is  to  be  disregarded,  and  the  boun- 
dary is  the  line  of  A  B.     — ■  v.  Heritage,  i  Hay.,  327,  (496.) 

3.  Where  a  patent  calls  for  a  stake  in  the  line  of  another 
patent  and  then  a  certain  course  "with  or  near"  a  line  of  the 
latter,  it  must  stop  at  the  intersection  with  the  first  line  of  the 
latter,  if  the  second  line  would  run  from  that  point  with  or  near 
the  line  of  the  patent  called  for,  but  would  not  do  so,  if  run  from 
the  intersection  with  the  second  line.  Bradberry  v.  Hooks,  N, 
C.  Term,  R.,  1  (443.) 

4.  Under  the  actof  1791,  it  is  sufficient  to  show  that,  by  common 
reputation,  a  tract  of  land  lias  certain  known  and  visible  boun- 
daries, although  those  lines  and  boundaries  belong  to  adjacent 
tracts,  and  were  nut  made  for  the  land  in  dispute  nor  in  any 
deed  thereof  are  recognised  as  the  lines  of  such  tract.  Tor  rep- 
utation and  hearsay  are,  of  themselves,  evidence  of  boundary. 
Tad-  v.  I   Hawks,  45.     (See   Rev.  Code  ch.   65,  sec.  2. 

5.  A  tract  of  land  was  granted  in  1761.  and  in  1784  another 
adjacenl  trad  was  granted,  which  called  fir  a  course  "along 
the  "Id  line  to  tin'  beginning."  In  17!' I  a  eoiper  and  line  were 
marked,  as  the   comer  and  line  of  the  tract  ot  17t>4,  parallel 


96  BOUNDARY.— III. 

to  the  old  line,  and  north  of  it;  it  was  held,  that  the  line  marked 
in  17114  was  not  conclusive,  and  that  if  the  jury  found  where 
the  old  line  was,  the  plaintiff  would  go  to  it,  notwithstanding 
the  corner  and  line  marked  as  his  line  in  17'J4.  Fruit  v.  Brower, 
2  Hawks,  337. 

(i.  Where  the  plaintiff  and  defendairl  claimed  under  two  differ- 
ent grants,  the  junior  of  which  called  for  the  line  of  the  elder, 
and  a  line  of  marked  trees  was  found  corresponding  in  age  with 
the  junior  grant,  it  was  held,  that  this  was  not  evidence  of  the 
boundary  of  the  elder  grant.     Sasser  v.  Herring,  3  Dev.,  340. 

7.  In  no  case  would  the  deed  of,  oreven  .a grant  to,  the  owner, 
calling  for  the  lines  of  another  tract,  headmitted  in  favor  of  one 
•.daiming  under  that  grantor  deed,  or  even  in  favor  of  one  claim- 
ing under  another  grant,  calling  for  the  lines  of  that,  made  at 
the  time  when  such  party  to  the  deed  or  grant  was  owner  of  the 
other  tract,      Ibid. 

8.  When  a  call  in  a  grant  was,  "  running  N.  15°  W.  220  poles, 
to  a  black  oak  near  his,  the  grantee's,  own  line,  and  the  black 
oak  could  not  be  found,  nor  its  locality  proved,  (7  was  held,  that 
the  word  "  near,''  would  not  carry  the  fine  30  poles  further,  to 
reach  another  tract  of  the  grantees,  but  that  it  must  be  stopped 
at  the  cud  of  th-t  distance  mentioned  in  the  grant,  Harry  y. 
Graham,,  1  Dev.  and  Bat.,  76. 

9.  A  posterior  line  of  a  grant  will  never  be  reversed,  for  the 
purpose  of  showing  the  termination  of  a  prior  one,  unless  the 
description  of  the  posterior  be  more  specific  than  that  of  the 
prior,  and  unless,  from  the  posterior  a  mistake  in  the  prior  can 
be  clearly  shown.     Ibid. 

10.  In  locating  a  grant,  a  call  for  the  lines  of  another  person 
ought  to  control  the  course  and  distance,  when,  at  the  time  of 
the  survy.  those  linos  were  well  know  or  established;  but  if 
they  were  aever  marked,  or  if  there  had  been  no  possession  ac- 
cording to  them,  nor  any  previous  claim  or  reputation,  then  a 
call  for  them  shyu.ld  be  disregarded,  and  the  course  and  distance 
pursued.     Carsonv.  Burnett,  1  Dev.  and  Bat,,  54(5. 

11.  A  grant,  calling  tor  a  comer  of  an  adjoining  grant  and 
three  of  its  iines,  is.  in  the  absence  of  proof  that  it  was  actually 
run  differently,  to  lie  confined  to  them;  and  the  fact  that  the 
grantee,  after  its  date,  executed  a  deed  for  the  adjoining  tract 
which  did  not  refer  to  cither  of  the  grants,  and  called  for  the 
same  corner  and  one  of  the  three  above  mentioned  lines  of  his 
grant,  and  corresponded  nearly  with  the  other  two,  is  not  sufli- 
cient  to  control  the  calls  of  his  grant,  ^lanigan  v.  Lee  ,2  Dev. 
and  Bat.   127. 

12.  A  deed  executed  by  the  owner  of  two  adjoining  tracts,  for 
one  of  them,  but  containing  no  averment  as  to  the  boundaries 
of  the  other,  does  not  estop  him  from  showing  the  true  bounda- 
ries of  the  other  tract.     Ibid. 


BOUNDARY.— 111.  191 

fo.  Where  a  line  of  a  granf  is  called  for,  then  along  that  ami 
^mother  line  of  tlie  same  grant,  to  a  corner  of  another  in  such 
second  line,  and  it  is  not  certain  whether  the  first  or  third  line 
of  the  grant  be  meant  by  the  first  call,  the  corner  of  the 
second  grant  must  be  reached,  whether  by  way  of  the  first  or 
third  line  of  the  firet  "-rant;  and  the  corner  of  the  second  grant 
must  be  reaqhed,  whether  it  is  immediately  on  the  line  of  the 
first  grant,  or  some  short  distance  from  it.  Hough  v.  Dumas,  1 
Dev.  and  Bat,  328, 

14.  When  a  grant  calls  for  a  corner  of  another,  but  leaves  it 
uncertain  which  of  two  particular  corners  is  meant,  the  second 
call  of  the  grant  may  be  resorted  tojfor  the  purpose  of  removing 
the  uncertainty  and  ascertaining  which  of  the  two  was  intended 
Und- 
id. Where  part  of  the  description  of  +1k'  boundary  of  a  tract 
of  land,  contained  in  a  grant,  was  from  a  certain  point,  "south 
with  A.  B.'s  line  310  poles  to  C.  D.'s  old  corner,"  and  -V.  B.'s  line 
did  not  reach  C.  D.'s  corner,  nor  run  in  the  direction  towards  it, 
but  at  the  end  of  310  polos  on  A.  B.'s  line,  you  had  to  run  nearly 
at  right  angles  to  arrive  at  ('.  l).'s  corner;  it  was  held,  that  you 
must  run  on  A,  D.'s  line  ,310  poles,  and  then  a  straight  line  to 
( '.  l>.'s  corner,  as  by  so  doing  you  would  besl  conform  to  the 
whole  description  of  the  deed,  though  you  would  run  two  lines 
instead  of  one,  as  called  for.     Skultz  v.  Young,  3  Ired.,  385. 

l(i.  Where,  in  running  a  line,  another  line  is  called  for,  and 
<the  distance  gives  out  before  reaching  the  line  Galled  for,  the 
distance  is  to  be  disregarded.  Gilchrist  v.  McLaughlin,  7 
lred.,  310. 

17.  When  a  deed  from  A  to  B  calls  forthe  line  of  an  adjoining 
tract,  testimony  cannot  be  introduced  to  control  that  call,  by 
showing  that,  at  the  time  of  the  execution  of  the  deed,  they  run 
to  a  different  line,  that  1!  afterwards  said  this  last  was  his  line, 
and  that  A  and  those  who  claimed  under  him  cultivated  foi 
many  years  up  to  this  line.     Joh ;/   v.   Farlow,   11     Ired.,   199, 

18.  Where  a  -rant  calls  for  the  line  of  an  old  grant,  the  rule 
is.  that  it  mu  ;  go  to  it,  unless  a  natural  object  era  marked  tree 
be  called  for,  and,    before  the  calls  of  the  junior  grant  can  bo 

fcairied,  those  of  the  old  must  be  located.  Di  la  v.  McGhee, 
12  lred.,  332. 

11).  A  marked  line  of  another  tract,  which  can  be  established, 
must  be  run  to,  disregarding  distance,  when  it  is  '-ailed  for  in  a 
conveyance;  but  where  the  line  cannot  be  established,  the  fact 
that  tin  the  original  survey,  the  surveyor  ran  to  a  given  point 
near  the  plantation  fence  ol  the  tract  named,  is  no  reason  "why 
course  and  distance  should  be  disregarded  in  favor  of  that  point 
Gausev.  Perkins,  2,  Jones,  '12-1. 

20.   The  hue    of  another  tract  called   for    controls  course  and 


192  BOUNDARY.— III.— IV. 

distance,  whether  such  Hue  be  marked  or  unmarked.      Corn  V. 
McCrary,  3  Jones,  496. 

21.  \\  here,  in  the  description  of  a  grant,  an  adjacent  tract  of 
land  or  a  natural  object  is  called  for,  the  same  must  be  gone  to 
by  one  straight  line,  disregarding  course  and  distance;  and 
when  the  thing  called  for  is  of  an  extended  character,  such  as 
another  tract  of  land,  a  river  or  a  swamp,  the  line  must  be  run 
to  the  nearest  point  of  it,  irrespective  of  course  and  distance. 
Campbell  v.  Branch,  4  Jones  313. 

22.  Where  one  of  the  calls  in  a  deed  was  for  a  "patent  lino,"  and 
there  was  one  patent  proved,  a  line  of  which  would  be  reached 
by  extruding  the  line  in  question  beyond  the  distance  called 
for,  and  no  other  patent  was  alleged  to  be  near  the  piemises; 
it  was  held,  that  the  call  was  sufficiently  definite  to  allow  of 
the  extension  of  line  to  that  patent.  Topping  v.  Sadler,  «J 
Jones,  357, 

23.  Where  the  line  of  another  tract  is  called  for  in  a  deed,  it 
must  be  reached  regardless  of  the  distance,  even  though  it  may 
itself  have  to  be  ascertained,  by  running  according  to  course  and 
distance.     Canshr  v.  File,  5  Jones,  424. 

24.  A  call  for  a  marked  tree  near  the  line  of  another  tract, 
when  such  tree  cannot  be  found,  will  not  control  course  and  dis- 
tance.    Ibid. 

25.  Where  the  evidence,  as  tt>  the  identity  of  a  line  of  another 
tract  called  for  in  a  deed,  was  unsatisfactory,  and  to  reach  it 
required  a  great  departure  from  the  course  and  distance;  it  was 
held,  to  have  been  error  in  the  Judge  to  assume  that  the  line 
had  been  proved,  and  to  charge  that  it  must  be  run  to,  disre- 
garding course  and  distance.  The  fact,  whether  it  was  the  line 
of  the  tract  called  for,  ought  to  have  been  left  to  be  decided  by  the 
jury.     Rodman  v.  Oaylord,  7  Jones,  262. 


IV.       LINES   ACTUALLY    RUN    AND   MARKED. 

1.  Marked  lines  proved  to  have  been  actually  run  and  marked, 
at  the  time  of  the  original  survey,  will  control  the  distance  men- 
tioned in  a  -rant.     Standen  v.  Bains,  1  Hay.,  238,  (273.)     S.  P., 

Bradford  v.  HiU,  Ibid,  22,  (30  ) v.  Beatty,  Ibid,  376,  (432.) 

Bustin  v.  Christee,  2  Hay..  99,  (260.)     S.  C,  'lay.  116,  (68.) 

2.  The  marked  lines,  actually  made  as  the  boundary,  are  to 
be  followed  vaflier  than  the  lines  mentioned  in  the  patent,  when 
they  disagree,  Tersonv.  Roundtree,  Mar.  18,  (1.)  S.  C.  1  Hay., 
378,  (436.) 

3.  If  a  deed  call  for  SO  poles  to  a  certain  tree,  as  a  corner,  and 
such  tree  stands  at  the  distance  id'  L60  poles,  that  shall  he  the 
corner.  no1  rithstanding  proof  that  the  surveyor,  after  making 


BOUNDARY.— IV.  193 

the  corner,  cut  off  80  poles  to  get  the  exact  quantity.     Johnston 
v.  House,  2  Hay...  801,  (491.) 

4.  You  may  depart  from  a  line  described  in  a  patent  or  deed, 
to  follow  a  marked  line  which  the  jury  believe  is  the  true  one. 
Blount  v.  Benbury,  2  May.  :;.">:;.  (542.) 

5.  Whenever  it  ran  be  proved  that  there  was  a  line  actually 
run  by  a  surveyor  and  marked,  and  a  corner  made,  the  person 
claiming  under  the  patent  or  deed  shall  hold  accordingly,  not- 
withstanding a  mistaken  description  in  the  patent  or  deed. 
Cherry  v.  Blade,  '■'<  Murph.,  .S2. 

li.  In  questions- of  boundary,  marked  lines  or  trees  are  more 
certain  than  course  or  distance,  and  therefore  shall  control  them  ; 
accordingly  when  there  has  been  a  long  and  continued  posses- 
sion up  to  lines  variant  from  those  called  for  in  the  grant,  and  it 
appears  that  such  lines  were  recognized  as  the  trm  lines  of  the 
grant,  1  >y  several  adjoining  patents,  it  ought  to  be- submit  tod  to  the 
jury,  for  them  to  draw  such  inferences  as  theymay  think  proper 
from  these  tacts.     McNeil  v.  Mousey,  3  Hawks,  91. 

7.  Where  the  parties  to  a  deed  intended  to- convey  only  land 
te>  which  the  vendor  had  title,  and  also  that  it  should  set  out 
the  boundaries  i>f  the  grant  to  him,  but  the  land  was  specially  sur- 
veyed and  the  corners  marked,  and  the  (feed  made  according  to 
the  survey,  its  courses  are  not  to  be  controlled  by  those  of  the 
grant,  and- if  it  cover  more  land  than  the  grant,  it  is  color  of 
title  as  to  the  excess.     Ingram  v.  Colson,  3  L)ev.,  520. 

8:  Where,  on  the  trial  of  an  ejectment,  it  appeared  that  one  of 
the  corner  trees  could  not  now  be  found,  by  running  the'eourse 
and  distance  called  for,  but  it  was  proved  that  many  years  ago  a 
former  owner  of  the  land  declared  that  a  stuWp  in  a  certain 
pond  was  his  cornel,  it  was  held  that  if  this  tree  had  been  marked 
as.  a  corner  at  the  time  of  the  original  survey,  then  it  would 
control  the  course  and  distance;  but  if  subsequently  marked, 
then  the  course  and  distance  would  not  be  controlled  by  it. 
Jcehour  v.  Bives,  10  Ired.,  256. 

9.  Where  a  deed  described  a  corner,  which  had  been  marked, 
as  being  on  the  east  side  of  a  creek,  it  is  admissible  for  the  party 
to  prove,  by  competent  testimony,  that  the  corner  was  in  fact 
on  the  loesi  side  of  the  creek.     Hauser  v.  Belfon,  10  Ired.,  358. 

1<1.  Whether  a  marked  corner,  made  at  the  time  when  the 
deed  was  i  xecuted,  but  not  called  for  in  the  deed,  was  intended 
to  be  adopted  as  a  corner  of  the  land,  or  whether  course  and 
distance  were, intended  by  the  bargainor  to  be  the  true  descrip- 
tion, is  a  question  of  fact  to  be  submitted  to  the  jury,  with  an  in- 
struction that  the  course  and  distance  must  prevail,  unless  it  can 
be  shown  that  the  marked  corner  was  the  one  which  the  bar- 
gainor intended  to  adopt.     So/ret  v.  1  fart  map,  5  Jones,  185. 

11.  Whether  the  rule,  that  "when  there  was  a  line  actually 
run  by  the  surveyor,  which  was  marked  and  a  corner  made,  the 
13 


194  BOUNDARY— IV. 

party  claiming  under  the  patent  or  deed  shall  hold  accordingly, 
notwithstanding  a  mistaken  description  in  the  patent  or  deed*,'' 
is  not  confined  to  grants  from  the  State  and  ancient  deeds, 
quaere.     Ibid. 

12  In  locating  a  patent  of  ancient  date,  marked  trees,  corres- 
ponding in  age  to  the  patent,  may  be  shown,  though  not  called 
for  in  the  patent.     Topping  v.  Sadler,  5  Jones,  357. 

13.  Whether  the  running  and  marking  of  a  line,  variant  from 
that  answering  the  calls  of  a  deed  of  mesne  conveyance,  can  at  all 
control  it,  quaere.  But  certainly,  no  running  and  marking  not 
contemporaneous  with  such  deed  can  be  allowed  to  have  such 
effect.  Admissions  of  the  parties  that  a  particular  line  was  the 
true  one  between  the  tracts,  and  acts  of  ownership  up  to  it  by 
the  claimants  on  both  sides  of  it,  do  not  perse  tend  to  show  such 
contemporaneous  running  and  marking  the  line.  Caraway  v. 
Chancy,  6  Jones,  361. 

13.  'Where  a  deed  called  lor  a  stone,  and  in  the  designated 
course  pointers  corresponding  in  age  with  the  deed  were  found 
around  aspot,(no  stone  being  there,)  anda  marked  line  of  trees  were 
also  found,  corresponding  in  age  with  the  deed,  and  correspond- 
ing with  the  next  course  called  for,  and  leading  from  the  spot 
so  designated  by  the  pointers,  it  was  held  that  the  deed  should 
be  construed  as  if  read  a  stone  "marked  as  a  corner  by  pointers," 
and  such  point  was  to  be  gone  to  irrespective  of  distance.  Safret 
v.  Hart), urn.  7  .Tones  199. 

15.  Where  the  first  line,  running  from  an  admitted  beginning 
corner,  is  established,  and  there  is  a  line  of  marked  trees  corres- 
ponding in  age  with  the  deed  and  with  the  course,  called  for, 
running  to  The  third  corner,  which  is  established,  the  second 
corner  may  befixed  by  reversing  the  second  line,  and  the  point  of 
intersection  of  the  latter  line  with  the  former  will  be  adopted, 
irrespective  of  course  and  distance.      Ibid. 

l(j.  'the  running  and  marking  a  line  in  1825,  by  a  surveyor, 
who  is  now  dead,  under  a  deed  made  in  1782, is  no  proof  of  the 
true  positiOB'Oi  shit  line,  no  is  ts  e\>  Lance  ci  the  v  n  ition  el 
the  compass  .at  different  periods  of  the  survey.  Hodman  v. 
Gayhrd.,1  Jxmes,  262. 

17.  Where  course  and  distance  called  for  in  a  grant  arc  pro- 
posed to  1»  controlled  by  the  proof  <  f  marked  trees  or  natural 
objects,  actually  run  to  and  marked  on  the  occasion  of  the  orig- 
inal survey,  it  was  held  that  the  substituted  description  ought 
to  be  sufficiently;  eertain  of  itself  to  identify  the  land.  Adding^ 
ton  v.  Jones,  7  Jones  582. 

18.  Where  a  white  (blank)  was  called  for  as  a  corn<  \  and  a 
white  oak  was  pointed  out  nearly  in  the  course,  by  a  marked 
line  leading  to  it,  and  by  other  circumstances,  it  was  held,  to  be 
a  proper  question  to  be  left  to  the  jury,  whether  the  white  oak 
was  the  corner  intended.      Dobson  v.  Fbdry,  8  Jones,  495. 


BOUNDARY.— IV.-V.  195 

See  (Boundary — Lines  of  another  tract  called  for,  6.)  (Eject- 
ment— Of  the  declaration,  24.) 

V.       COURSE    AND    DISTANCE    CALLED    FOR. 

1.  In  the  case  of  boundaries  given  in  deeds  and  patents,  the 
courses  and  distances  therein  mentioned  must  be  observed, 
•except  where  a  natural  boundary  is  called  for  and  shown,  or 
where  marked  lines  and  courses  can  be  proved  as  the  original 
survey.     Bradford  v.   Hill  1  Hay.,  22,  (30.) 

2.  The  call,  "thence  to  a  corner,  &c,"  means  a  direct  line 
from  the  former  to  the  latter  point.     Bryant  v.  Vinson,  2   Hay., 

.;-],  (145.) 

3.  Where  there  are  no  natural  boundaries  called  for,  nor 
marked  trees  nor  corners  to  bo  found,  nor  the  places  where  they 
•once  stood  ascertained  and  identified  by  evidence;  or  where  no 
lines  or  corners  of  an  adjacent  tract  are  called  for,  the  courses 
and  distances  specified  in  the  deed  or  patent  must  be  followed. 
Cherry  v.  Slade,  3  Murph.,  82. 

•1.  If  one  grant  one  thousand  acres  of  land  and  no  more, 
according  to  certain  lines  which  in  fact  include  two  thousand 
acres,  the  Litter  quantity  shall  pass,  because  the  butts  and 
bounds  are  more  certain  than  the  number  of  acres;  this,  in- 
deed, is  in  no  way  material,  except  where  tic  boundaries  are 
doubtful,  when  it  is  a  circumstance.  Reddiclc  v.  Legi/at,  3 
Murph.,  539. 

5.  .V  mistake  in  the  course  or  distance  of  a  deed  should  not 
lie  permitted  to  disappoint  .the  intent  of  tin-  parties,  if  that 
intent  appear,  and  if  the  means  for  correcting  the  mistake  lie 
furnish  d,  either  by  a  more  certain  description  m  the  same  deed, 
or  by  reference  to  another  deed  containing  a  more  certain  de- 
scription.    Campbell  v.  McArtlmr,  2  Hawks,  33. 

6.  '!'! oursi   mid  distance  given  in  a.  deed  cannot  be  altered 

byparol  evidence  of  transactions,  ;  tie  those  transactions  tend 
to  prove  the  erection  of  some  monument  or  boundary  cotempo- 
n:  ii  usly  with  the  execution  of  the  deed.  Reed  v.  Shenck,  2 
Dev..  4 1 5. 

7.  The  terminus  of  a  line  must  be  either  the  distance  called 
for  in  the  deed,  or  some  permanent  monument  which  will  endure 
for  yi  '  s,and  the  erection  of  which  was  cotemporaneous  with  the 
execul  on  of  the  deed.  A  stake  is  not  such  a  monument;  and 
evidein  e  of  its  erection,  when  the  laud  was  surveyed,  is  not 
admissible  to  control  the  course  ami  distance.  Reed  v.  ScJnn  I: 
3  Dev.,  G5. 

8.  Course  and  distance  from  a  given  point  contain  a  certain 
description  in  themselves ;  and,  therefore,  should  never  lie  de- 
parted from,  unless  there  be  something  else,  which  proves  that. 
the  course  and  distance  stated  in  the  deed  was  thus  stated  by 
mistake.     Harry  v.  Graham,  1  Dev.  and  Bat,,  76. 


196  BOUNDARY.—  V. 

9.  In  questions  of  boundary,  the  distance  called  for  in  a  cer- 
tain line  in  the  deed  must  govern,  unless  the  party  can  show 
that  a  corner  was  made  beyond  such  distance.  In  order  to  fix 
the  terminus  of  such  line,  he  will  not  be  allowed  to  reverse  a 
subsequent/ line,  unless, -by  so  doing,  there  be  something  to 
render  the  means  of  identifying  it  more  certain  than  the  calls  of 
the  deed;  1  nit  if  it  appear  that  the  subsequent  line  was  actually 
run  and  marked,  the  prior  line  may  be  extended  to  it  in  order 
to  ascertain  the  true  corner:.  E'vng  v.  King,  ±  Dev.  and 
Bat,  164.. 

10.  Where  a.  grant  calls  for  a.  certain  course  from  one  corner 
to  another,  without  saying  by  a  line  of  marked  trees,  and  the 
coiners  arc  both  established,  the  direct  line  from  the  one  corner 
to  the  other  is  the  boundary,  although  there  may  be  a  line  of 
marked  trees  between  the  corners,  but  varying  in  some  places 
from  the  direct  line;  but  if  in  the description  aline  of  marked 
trees  be  called  for,  in  addition  to  the  course,  the  line  of  marked 
trees  is  then  to  be  followed,  though  variant  from  the  course. 
Hough  v.  Horn,  4  Dev.  and  Bat.,-228. 

11.  When  a  certain  course  is  called  for,  in  a  grant,  along  a 
public  road  from  one  corner  to  another,  and  the  corners  are 
identified,  the  public  road  is  the  boundary,  though  varying  from 
the  course;  and  if  there  "be  two  tracks  of  the  road  for  part  of  the 
distance,  it  is  for  the  jury  to  ascertain  which  track  was  the  pub- 
lic road  at  the  time  of  the  grant.    Ibid. 

13.  It  is  a  settled  rule  of  construction  ifi  bfiis  State  that  when 
•'stakes"  are  mentioned  in  a  deed,  simply,  or  with  no  other 
added  description  than  that  of  course  and  distance,  they  are  in- 
tended by  the  parties,  and  so  understood,  .to  designate  imaginary 
points.     Massey  v.  Belisles  2  Ired.,  170.- 

13.  When  a  course  is  resorted  to,  for  want  of  a  better  guide,  to 
find  the  terminus  or  boundary  of  a  tract  of  land,  it  is  the  course 
as  it  existed  at  the  time,  to  which  the  description  of  the  tract  of 
laud  refers  If  it  appear  that,  because  of  the  magnetic  varia- 
tion, the  coarse  is  not  the  same  with  that  which  the  needle  now 
points  out,  it  is  the  duty  of  the  jury  to  make  allowance  for  such 
variation,  in  order  to  ascertain  the  true  original  line.  Norc&m 
v.  Leary,  '■>  [red.,  KJ. 

14.  Where  nothing  bu1  course  and  distance  are  called  for  in  a 
deed,  parol  evidence  is  m  1  admissible  to  show  that  a  line  of 
marked  trees,  not  called  for  in  the  deed,  is  the  true  boundary. 
Wynnes.  Alexander,  7  [red.,  237. 

15.  When  one  corner  is  established  and  the  course  and  dis- 
tance only  given,  and  the  next  corner  called  for  in  the  deed  is  also 
established,  the  line  must  run  directly  from  one  corner  to  the 
other,  although  a  line  of  marked  trees  may  be  found  between 
the  corners,  but  varying  in  some  places  from  the  direct  line ; 
nor  is  it  sufficient  to  make  an  exception  to  this  rule,  that  the 


BOUNDARY.— V.  197 

trees  were  marked  as  the  line  by  the  parties,  at  the  time  when 
the  deed  was  ex<  rated  between  them.     Ibid.. 

16.  In  ascertaining'  the  boundaries  of  a  grant,  when  a  point  is 
described,  as  being  a  given  distance  from  a  certain  other  point, 
a  direct  line  is  implied,  unless  there  be  something  to  rebut  the 
implication.  And  the  circumstance  that  both  points  are  on  the 
same  river  has  no  tendency  to  destroy  the  implication.  Slade  v, 
■Etheridye,  L3  [red.,  353. 

17.  In  a  question  of  boundary,  the  distance  called  for  by  the 
deed  must  prevail,  unless  there  be  some. other  description  less 
liable  to  mistake,  to  control  it.  As,  when  the  distance  called  for 
was  •■  two  hundred  feet,"  and  the  premises  described  as  the 
"Winched  lots."  it  was  held,  that  the  line  must  stop  at  the  end 
of  two  hundred  feet,  though  it  did  not  reach  the  limit  of  the 
Winched  lots.     Kissamv.  Gayhrd,  Busb.  116. 

18.  Course  and  distance  prevail,  in  questions  of  boundary,  un- 
less controlled  by  some  more  certain  description.  tSjiriiillv. 
Davenport,  Busb.,  134. 

19.  A  mistake  in  the  course  or  distance,  contained  in  the  calls, 
of  a  grant,  will  not  be  permitted  to  disappoint  the  intent  of  the 
parties,  if  that  intent  appear,  and  the  means  of  correcting  the 
mistake  be  furnished,  either  by  a  more  certain  description  in  the 
grant,  as  by  a  plat  annexed  to  such  grant,  and  referred  to  in 
the  same.     Gooperv.   White,   1  Jones,  389. 

20.  Where  one  of  the  calls  in  a  grant  was  "S.  eighty  degrees 
E.,"  but  in  the  plat  and  certificate  of  survey  annexed,  the  same 
call  was  "  S.  eight  degrees  E.,"  and  it  appeared  that  to  run  ac- 
cording to  the  grant  alone  the  lines  would  cross  each  other 
several  times,  dividing  the  land  into  three  distinct  parcels,  and 
would  only  contain  about  half  the  number  of  acres  called  for, 
aud  that  by  so  running  the  lines  would  never  meet  at  the  begin- 
ning ;  but  by  running  according  to  the  plat  and  survey  a  con- 
sistent diagram  would  l>e  made,  embracing  the  proper  quantity: 
it  was  held,  that  the  latter  description  must  prevail.     Ibid. 

21.  Where  the  owners  of  adjacent  tracts  of  land  ran  and  staked 
off  a  line,  supposing  it  to  be  the  true  line  between  them,  and 
had  so  considered  it  for  more'than  20  years,  but  there  was  no  ac- 
tual possession  of  the  part   included    between  this  line  ami  the 

I  true  om  .   it  was  lull,  that  tin-  original  rights  of  the  parties  were 
^not  thereby  altered,  and  the  line  according  to  the  course  called 
for  wdl  be  the  true  line  by  which  such  rights   must  be  settled. 
Carroway  v.  Chawey,  2  Jones,  170. 

22.  In  ascertaining  a  boundary  line  on  a  given  course,  allow- 
ance must  be  made  for  a  variation  of  the  needle,  when  the  fact 
of  a  variation  is  proved.      Gayhrd  v.  Gayhrd,  3  Jones,  3l>7. 

23.  A\  here  the  beginning  call  in  a  grantis  for  a  stake,  and  all 
the  other  nails  are  for  course  and  distance,  the  location  of  the 
hmJ  is  impossible,   because  the  beginning  being  a  stake,  an  im- 


198  BOUNDARY.— V. -VI, 

aginary  point,  it  cannot  be  identified.     Mann  v.  Taylor,  4  Jones,. 
272. 

24.  A  description  of  land  calling  for  a  goint  or  stake  as  a  he-  ■ 
ginning,  and  course  and  distance  for  all  the  other  boundaries,  is 
too  vague  to  permit  any  land  to  be  identified  under  it.  Archi- 
bald v.  Davis,  5  Jones,  322. 

25.  Where  the  contest  between  the  parties  was,  whether  the  be- 
ginning corner  of  a  deed,  calling  for  courses  and  distances,  was  at 
one  point  or  at  another,  it  was  held  to  be  competent  to  show  that 
if  it  commenced  at  one  oi  the  points  contended  fur,  it  would  dis- 
turb and  conflict  with  ancient  and  well  established  boundaries 
of  other  tracts,  for  the  purpose  of  repelling  the  evidence  that 
such  was  the  tfrue  place  for  the  beginning.  Hubbs  v.  Outlaw,  &- 
Jones,  174. 

26.  Surveys  made  on  the  occasion  of  bringing  into  market  the 
Cherokee  lands,  and  filed  in  the  office  of  the  Secretary  of  State, 
but  which  are  without  system,  certainty  or  consistency,  lo&re 
held  not  to  be  sufficient  to  overrule  the  calls  of  a  grant,  as  to 
course  and  distance.     Addingtonv.  Jones,  7  Jones,  582. 

27.  A  survey  made  of  Chrokee  lands,  at  the  instance  of  an  in- 
dividual, independent  of  the  action  of  the  commissioners  empow- 
ered to  survey  and  sell  the  lands,  was  held  not  to  be  sufficient  to 
control  or  contradict'  the  calls  of  a  grant  as  to  course  and  dis- 
tance.    Ibid. 

28.  Where  the  second  corner  of  a  boundai-y  is  clearly  estab- 
lished, the  first  may  be  ascertained  by  running  the  course  re- 
versed, and  measuring  on  it  the  distance  called  for.  Dobson  v. 
FinleyT  8  Jones,  495. 

See  (Deed — Of  the  construction  of  deeds-  and  their  various 
parts,  30.) 

VI.       OF    PAROL    EVIDENCE    IN    BOUNDARY    CASES. 

1.  Any  mistake  or  wrong  description  of  the  land  in  the  plat 
or  patent  may  be  rectified  by  parol  testimony,  and  the  true 
location  of  "the  land  be  proved  by  testimony  dehors  the  patent. 
Lqften  v.  Heath,  2  Hay,. 347,  (531.) 

2.  Marked  lines  ana  corners,  actually  run  and  made,  maybe 
proved  by  parol,  though  not  called  for  in  a  deed ;  but  this  rule, 
which  is  a  violation  of  principle,  shall  not  be  carried  further,  so  as 
to  permit  parol  evidence  to  contradict  or  vary  the  description, 
where  there  is  no  mark  or  vestige  left;  and  therefore,  where  a 
deed  called  for  a  course  from  a  point  on  a  river,  different  from 
the  course  of  the  river  and  not  calling  for  it,  parol'  evidence 
should  not  be  received  to  vary  the  description,  and  show  that 
the  line  actually  run,  at  the  time  of  the  grant,  was  the  river. — 
Sladev.  Green,  2  Hawks,  218. 

3..  Common  reputation  is  evidence  in  questions  of  boundary;. 


BOUNDARY.—  VI.  199 

and  in  ascertaining  Lod  Granville's  line,  astronomical  obser- 
vation is  a  more  certain  mode  (the  latitude  of  the  line  being 
given)  than  an  actual  running  of  the  line,  from  a  certain  point 
on  the  seashore  designated  as  a  beginning.  Taylor  v.  Shuford, 
4  Hawks,  116. 

4.  The  act  of  1791,  making  twenty-one  years  possession  under 
visible  bondaries,  without  a  grant,  conclusive  against  the  State, 
is  founded  upon  the  supposed  loss  of  title  papers  setting  forth 
those  boundaries;  but  possession  for  twenty -one  years  up  to  a 
visible  line,  although  it  may  be  evidence  in  ascertaining  the 
boundaries  set  forth  in  a  deed,  is  not  conclusive  that  the  visible 
line  is  the  true  boundary.  Rhern  v.  Jackson*  2  Dev.  187.  (See 
Kev.  Code,  eh.  65,  sec.  2.) 

5.  Parol  evidence,  to  control  the  description  of  land  in  a  deed, 
is  in  no  case  admissible,  unless  where  monuments  of  boundary 
were  erected  at  the  execution  of  the  deed.  If  the  description 
in  the  deed  varies  from  these  monuments,  the  former  may  be 
controlled  by  the  latter.     Reed  v.  Schench,  2  Dev.,  415. 

6.  Where  the  boundaries  of  land  never  were  marked,  nothing 
can  alter  the  course  and  distance  in  the  deed.  Therefore,  where 
a  deed  callecLfor  a  front  of  six  poles,  and  there  was  no  evidence 
that  the  line  was  run  and  marked,  parol  evidence  cannot  be  ad- 
mitt  ted  to  show  that  six  poles  and  six  feet  were  meant.     Ibid. 

7.  In  questions  of  boundary,  the  declarations  of  a  deceased 
person  are  admissible  in  evidence  ;  but  not  those  of  a  person 
who  has  removed  from  the  State.  Hartzog  v.  Hubbard,  2  Dev. 
and  Bat,  241. 

8.  In  questions  of  boundary,  hearsay  evidence,  post  litem 
motam,  is  inadmissible.     Dancy  v.  Sugg,  2  Dev.  and  Bat.,  515. 

9.  In  this  country,  traditionary  evidence  is  received  in  regard 
to  private  boundary;  but  we  require  that  it  should  have  some- 
thing definite  to  which  it  can  adhere,  or  that  it  should  be  sup- 
ported by  proof  of  corresponding  acquiescence  or  enjoyment. 
A  mere  report,  or  neighborhood  reputation,  unfortified  by  evi- 
dence of  enjoyment  or  acquiescence,  that  a  man's  paper  title 
covers  land,  is  too  slight  and  unsatisfactory  to  be  received  as 
evidence  in  questions  of  boundary.  MendenhaU  v.  Cassete,  3 
Dev.  and  Bat.,  49. 

10.  Parol  evidence  is  inadmissible  to  aid,  or  add  to,  the  de- 
scription of  land  in  a  deed  or  other  instrument.  It  can  only  be 
used  to  point  out  and  identify  the  thing  sufficiently  specified  in 
the  deed,  or  other  instrument,     Archibald  v.  Davis;  5  Jones,  322. 

11.  Where  one  of  the  calls  of  a  grant  was  for  "theheadof  Spel- 
lars  creek,"  it  ivas  held,  to  be  competent  to  show  by  parol  evi- 
dence, where  the  head  of  "Spellar's  creek"  was;  for  such  testi- 
mony would  be  the  statement  of  a  fact,  and  not  merely  the  ex- 
pression of  an  opinion.      Waters  v.  Simmons,  7  Jones,  541. 

12.  The  intention  of  a  grantor,  in  describing  a  corner  or  line. 


200  BOUNDARY.— VI.— BRIDGES.— BROKER. 

cannot  be  set  up  by  parol  evidence  in  opposition  to  the   plain 
terms  of  the  deed.     Potion  v.  Alexander,  7  Jones,  603. 

13.  Evidence  by  reputation,  as  well  as  evidence  by  hearsay, 
may,  under  certain  circumstances,  be  given  in  evidence  upon 
questions  of  boundary.  In  the  latter  the  statement  proposed 
to  be  given  is  not  admissible  unless  the  peron  be  dead"-; 
but  it  is  not  so  as  to  evidence  by  reputation.  Hence  old  grants 
or  deeds  of  adjoining  tracts,  calling  for  particular  lines  nr  cor- 
ners, may  be  admitted  as  evidence  by  reputation  of  the  existence 
of  such  lines  or  corners,  whether  the  parties  to  such  old  grants 
or  deeds  be  living  or  dead.     Dobson  v.  Fhdey,  8  Jones,  495. 


BRIDGES. 

See  (Ferry  and  Toll  bridge.)  (Highway,  6-7.)  (Indictment — 
When  an  indictment  will  lie.  15-62.)  (Indictment — Form  an  6 
matters  relating  thereto,  113.)  • 


BROKER. 

1.  It  is  not  to  be  assumed  that  a  bill  broker,  undertaking  to 
negotiate  notes  in  the  market  for  another  person,  upon  the  best 
terms  in  his  power,  took  them  on  his  own  account,  especially 
when  a  third  person  is  found  to  be  the  holder,  and  it  appears 
that  he  acted  as  broker  in  good  faith.  Long  v.  Gantley,  4  Dev. 
and  Bat.,  313. 

2.  A  bill  broker  may  be  constituted  the  agent  of  the  buyer 
and  also  of  the  seller  of  notes,  and  in  that  character,  by  acting 
for  each  of  his  principals  in  the  usurious  discount  of  a  note,  may 
make  a  contract,  which  may  be  an  usurious  one,  entered  into  by 
the  principals  through  the  broker,  as  their  common  agent.  Brat 
there  is  nothing  in  the  character  of  a  bill  broker  or  in  his  trans- 
actions, that  necessarily  constitutes  him  the  agent  of  both  the 
buyer  and  seller  of  paper  passing  through  his  hands;  the  con- 
trary is  to  be  inferred,  and  it  is  to  be  supposed  that  lie  is  the 
agent  of  one  only,  because  after  contracting  with  one,  it  is  in- 
consistent with  the  interest  of  that  one  and  with  the  brokers's 
duty  to  him,  to 'undertake  the  same  office  f<v'  the   other  party. 

ibid. 


BURGLARY.  201 


BURGLARY. 

If  an  out-house  be  so  near  the  dwelling  house  tli;u  it  is  used 
■with  it,  though  not  in  the  same  enclosure,  burglary  may  be  com- 
mitted in  it.  Here  the  out-house  was  s<  venteen  and  a  half  feet 
from  the  dwelling  house.     State  v.  Twitty,  1  Hay.,  L02,  (118.) 

2.  The  meaning  of  the  term  curtilage  is  a  piece  of  ground 
either  enclosed  or  not,  that  is  commonly  used  with  the  dwelling 
house.     Ibid,. 

3.  A  burglary  may  be  committed  in  a  store  house,  standing 
twenty-four  yards feom  the  dwelling  house, and  separated  there- 
from by  a  i'eiiec,  if  the  owner  or  his  servants  sometimes  sleep 
therein.  State  v.  Wilson,  1  Hay.,  242,  (279.}  (Overruled,  see 
State  v.  LangforcL,  1  Dev.,  253,  and  State  v.  Jenkins,  5  Jones, 
430>) 

4.  Burglary  can  inly  be  committed  in  a  dwelling  house,  or 
such  outbuildings  a«  are  necessary  or  convenient  to  it  as  a  dwell- 
ing, therefore  it  is  net  burglary, to  break  the  door  of  a  store, 
situate  within  three  feet  o'i  the  dwelling  house,  ami  enclosed  in 
the  same  yard,  but  with  no  entrance  common  to  both.  Stair  v. 
Langford,  1  Dev.,  253. 

5.  There  cannot  he  a  constructive  breaking,  so  as  to  consti- 
tute burglary,  by  enticing  the  owner  out  of  his  house  by  fraud 
and  circumvention,  and  thus  induce  him  to  open  his  door,  unless 
the  entry  of  the  trespasser  be  immediate,  or  in  so  short  a  time 
that  the  owner  or  his  family  has  not  the  opportunity  of  refasten- 
ing  the  door.  Where  the  owner,  by  the  strategem  of  the 
trespasser,  was  decoyed  to  a  distune,-  .  com  his  house,  leaving 
his  doer  unfastened,  and  his  famffly  neglected  to  fasten  it  after 
his  departure,  and  the  trespasser.  ,<i.i  the  expiration  of  about  fif- 
teen minutes,  entered  the  house  without  breaking  any  part,  but 
through  the  unfastened  door,  with  intent  to  commit  a  felony,  it 
was  held  not  he  a  burglary.     State  v.  Henry,  !•  [red,  463. 

li.  In  burglary  there  must  he  a  breaking,  removing  or  putting 
aside  of  something  material,  which  constitutes  a  part  of  the 
dwelling  house,  and  is  relied  on  as  a  security  against  intrusion. 
A  door  or  window  left  open  is  no  such  security;  hut  if  the  door 

•or  window  be  shut,  it  is  not  necessary  to  resort  to  locks,  holts  or 
nails;  a  latch  to  the  door  or  the  weight  of  the  window  is  suifi- 

.cient,     Shift  v.  llmm.  13  [red.,  £44. 

7.  Where  a  man  burglariously  entered  a  room  where  a  young 
lady  was  sleeping  and  grasped  her  ancle,  without  any  attempt 
K  explanation,  when  she  screamed  it  was  held  to  be  some  evi- 
denee  of  an  attempt  to  commit  a  rape,  and  as  such  was  properly 
submitted  to  the  jury.     lhld. 

8.  A  smoke  house  used  as  sucfh, forming  a  part  of  the  enclosure 
of  the  dwelling  house  yard)  with  the  door  opening  into  tin;  yard. 


202  BURGLARY,— BURNING  WOODS. 

is  in  law  a  part  of  the  dwelling  house,  though  standing  twenty- 
four  yards  from  it,  and  a  burglary  may  be  committed  by  break- 
ing into  it  in  the  night  time,     State  v.  Whit,  4  Jones,  349, 

9.  The  law  raising  no  presumption  that  a  breaking  was  in  the 
night  rather  than  in  the  day,  even  when  the  person  charged  is 
a  runaway  slave,  the  fact  that  it  was  in  the  night  must  be  proved 
by  the  state,  either  by  direct  or  circumstantial  testimony.     Ibid. 

10.  A  store  house  situated  two  hundred  and  fifty  yards  from 
the  dwelling  house  of  the  prosecutor  and  on  the  opposite  side  of 
a  public  mad  from  it,  to  which  there  was  no  chimney,  and  in 
which  was  no  bed  or  bedstead,  though  the  owner  slept  there 
some  times  twice  a  week,  and  at  others  not  more  than  once  in 
two  weeks,  (his  usual  place  of  sleeping  being  his  dwelling 
house,)  was  held  not  to  be  a  dwelling  house  in  any  sense  of  the 
word,  and  that  burglary  could  not  be  committed  by  breaking: 
into  it,     State  v.  Jenkins,  5  .Jones,  430. 

11.  Where  one  entered  at  night  through  a  chimney  into  a- 
log  cabin,  in  which  the  prosecutrix  dwelt,  and  stole  goods  therein, - 
it  ivas  held  (Pearson  C.  J.  dessenting)  that  it  was  burglary,, 
although  the  chimney  was  made  of  logs  and  sticks,  was  in  a 
state  of  decay,  and  not  more  than  five  and  a  half  feet  high. 
State  v.  Willis,  7  Jones,  190. 

12.  If  a  man  break  and  enter  into  a  house  by  night  with  in- 
tent to  commit  a  felony,  the  crime  of  burglary  is  consummated, 
though  after  entering  the  house  he  desist  from  any  further  at- 
tempt to  commit  the  felony,  through  fear,  or  because  he  is  re- 
sisted..   State  v.  McDaniel,  1  Winst.,  249. 

13.  The  intent  to  commit  a  felony  may  appear  from  antecedent 
circumstances,  and  If  there  be  a  forcible  entry  into  the  house  in 
the  night,  the  intent  so  appearing,  it  is  burglary.     Ibid. 

14.  It  is  not  burglary  to  break  and  enter,  in  the  night  time,  a 
smoke  house  thirty-five  steps  from  a  dwelling  house,  which  has 
no  enclosure  around  it.     State  v.  Jake.,  2  Winst.,  80. 

15.  A  log  cabin  belonging  to  the  owner  of  a  tobacco  factory, 
in  which  the  superintendent  of  the  factory  usually  slept,  is  a 
dwelling  house  in  which  burglary  may  be  committed.     1  bid. 

See  (Evidence — In  criminal  proceedings  and  indictment 
44-10(>.)  (Indictment — In  what  cases  an  indictment  will  lie,  5.) 
(Indictment — Form  and  matters  relating  thereto,  25.)  (Indict- 
ment.— Of  the  trial,  verdict  and  judgment,  1.)  (.Indictment — 
Plea  of  former  acquittal  or  conviction,  4-12.)  (Indictment — " 
Variance  between  the  allegations  and  proof,  13.) 


BURMNG  WOODS. 

See  (Woods.) 


CARRIER.— I.-II.  203 


CARRIER. 

r.  Who  are  considered  common   car-  I   II  Of  the  duties  and  liabilities  of  car- 
riers, riers. 

I.       WHO    AUK    CONSIDERED    COMMON    CARRIERS. 

1.  A  common  carrier  is  one  who  undertakes  to  serve  all  per- 
sons indifferently  for  hire,  in  carrying  goods  from  one  place  to 
another.  Hence  a  person,  who  does  not  make  it  his  ordinary 
employment,  is  not  tod>e  deemed  a  common  carrier,  because  he 
agrees  on  one  occasion  to  carry  goods;  and  in  such  case  he  is 

bound  only  to  ordinary  care  and  prudence     v.  Jackson,  1 

Hay.,  14,  (19.) 

2.  If  a  man's  slave  usually  acts  for  him  as  a  ferryman,  the  master 
is  considered  a,  common  carrier.     Spin/  v.  Farmer,  2  Hay.,  339, 

3.  Freighters  for  hire  upon  navigable  rivers  are  to  be  consid- 
ered as  common  carriers,  and  subject  to  their  liabilities.  The 
words,  "dangers  ol  the  rive]  excepted,"  signifythe  natural  acci- 
dents incident  to  that  navigation,  not  such  as  might  be  avoided 
by  the  exercise  of  that  discretion  and  foresigflt  which  are  ex- 
pected from  persons  in  such?  business.  Williams  v.  Branson,  1 
Murph.,  417. 

4-  In  an  action  against  a  drayman  in  the  town  of  Wilming- 
ton, brought  to  charge  him  as  a  common  carrier,  for  the  loss  of  a 
trunk,  the  plaintiff  may  shew,  if  he  can,  that  it  was  the  duty  of 
draymen  in  that  town  to  cany  baggage.  Herring  v.  Uttey,  8 
Jones,  270. 

II.       OF    THE    DUTIES    AND    LIABILITIES    OF   CARRIERS. 

1.  A  common  carrier  is  liable  to  be  sued  if  he  refuse  to  carry 
goods  for  the  common  reward,  and  is  liable  in  all  events,  except 
for  the  acts  of  God  and  the  public  enemies;  but  one,  who  under- 
takes only  in  a  particular  case  to  carry  goods;  is  bound  to  exer- 
cise only  common  and  usual  prudence  and  diligence,  in  the  per- 
formance of  what  he  has  undertaken,  and  is  not  answerable  for 
accidents,  which  have  happened  notwithstanding  such-prudence 
and  diligence      .  v.  Jackson,  1  Hay.,  14,  (19. ) 

2.  A  common  carrier  is  liable  for  all  losses,  except  such  as  hap- 
pen by  the  act  of  God  or  the  enemies  of  the  State.  All  acci- 
dents which  occur  by  the  intervention  of  human  means,  how- 
ever irresistible  they  may  be,  he  is  liable  for.  Bad-house  v.  Sneail. 
1  Murph.  173. 

3.  No  custom  among  the  freighters  and  owners  of  boats,  on 
a  navigable   river,  will  excuse   them  from  the  operation   of  the 


204  CARRIER— IT. 

law  governing;  common  carriers.     Adam  v.  Say,  3  Murphy  149. 

4.  The  rule  of  diligence,  which  measures  the  liability  of  com- 
mon bailees  for  hire,  is  not  that  by  whieb  the  engagement  of 
common  carriers  is  to  be  tested.  The  latter  can  be  excused  from 
the  non-performance  of  their  contracts  by  nothing  short  of  the 
act  of  God,  or  of  a  public  enemy.  Sarrell  v.  Owens,  1  Dev, 
and  Bat,  273. 

.r>.  Where  the  master  of  a  vessel  undertakes  to  deliver  articles 
shipped  on  board  of  his  vessel,  on  freight,  at  a  certain  place,  he 
cannot  allege  ignoranee,  want  of  skid,  or  any  excuse  arising 
from  human  fault  or  human  weakness,,  as  a  defence  for  violating 
his  engagement.  The  true  question  is  not  one  of  actual  blame, 
but  of  legal  obligation.     Ibid. 

6.  The  rule  of  law,  that  common  carriers  are  bound  as  en- 
sttrers  for  the  safe  delivery  of  goods,  docs  aot  extend  to  the  time 
cf 'delivery.     Boner  v.  Merchant's  Steamboat   Company,  1  Jones, 

7.  The  captain  or  master  of  a  steamboat,  beisag  a  mere  servant 
of  the  owners,  is  not  liable  as  a  common  carrier,  and  cannot  be 
sued  jointly  with  them  as  such.      Walston  v.  Myers,  -r>  Jones,  174. 

8.  An  action  cannot  lie  maintained  against  a  railroad  company 
as  a  common  carrier,  for  the  loss  or  destruction  of  goods  de- 
posited on  the  road  side,  at  a  plaee  where  there  was  no  regulaar 
station  and  no  agent,  although  a  conductor  of  a  freight  train 
had  promised  to  stop  and  take  them.  Such  deposits  are  at  the 
risk  of  the  owner,  until  they  arc  put   on  a  freight  car.      Wills  v. 

Wilmington  and  Weldon  Railroad  Company,  (i  Jones,  47. 

9.  Where  an  article  was  delivered  to  a  common  carrier  to  be 
delivered  to  a  factor  at  a  certain  market,  who  hail  been  instructed 
not  to  sell  until  ordered,  and  the  carrier  delivered  it  to  another 
factor  at  a  different  market,  and  he  having  no  instructions  con- 
cerning it  sold  it  immediately,  and  afterwards  the  article  rose  in 
price;  it  was  held  that  a  suit  lay  against  the  carrier  tor  a  misfea- 
sance, and  the  plaintiff  was  entitled  to  the  highest  price  attained 
by  the  article  before  the  suit  was  brought,  such  suit  having  been 
brought  in  a  reasonable  time;  and  further  that  the  receipt  of  the 
proceeds,  from  the  factor  who  sold,  was  bo  bar  to  the  action,  but 
only  reduced  the  damages  to  the  difference  between  siicb  pro- 
ceeds and  the  highest  price  at  which  the  article  might  have 
sold.  Arrington  v.  Wilmington  and  Weldon  Railroad  Company, 
6  Jones,  68. 

10.  Where  a  master  of  a  vessel  engaged  chiefly  in  carrying 
naval  stores,  between  this  State  and  New  York  city,  took  in 
charge  a  box  of  jewelry,  without  including-  it  in  any  bill  of  lad- 
ing, and  without  any  contract,  for  the  juice  of  carrying  it,  it 
was  held,  that  he  was  only  liable  as  an  ordinary  bailee,  and  not 
as  a  common  carrier,  and  that  as  he  kept  it  in  a  place  Gf. ordi- 
nary security,  im.fi  was  violently  robbed  of  it,  he  was  not  guilty 


CARRIER.'—  II.  205 

of  negligence,  arid  therefore  not  responsible'  for  the  loss.-  Pen- 
der v.  Bobbins,  6  Jones,  21)7. 

11.  In  such  a  case  as  the  one  just  above  stated  if  irni  held, 
that  the  nature  of  the  ninlertaking  did.  not  bind  the  defendant 
to  go  on  a  direct  voyage .from  one  port  to  the  other,  so  as  to  sub- 
ject him  for  a  deviation.-    Ibid. 

12.  Where  an  article  was  carried  on  a  railroad,  and  the  con- 
signee lived  sixteen  miles  from  the  road)  and  no  agent  was  pre- 
sent to  receive  it.  at  the  depot  win.  re  it  was  to  be  delivered,  and 

it  was  deposited  in  a  warehouse  belonging  to  the  railroad  i i- 

pany:  it  was  held,  that  when  so  deposited  the i  pany  wHs  ex- 
onerated from  liability,  as  a  common  carrier,  and  was  bound  only 
as  a  warehouseman  for  ordinary  neglect.  Hillictrd  v.  Wilmington 
and  Wrhhni  Railroad  Company,  ©'Jones,  343. 

13.  The- necessity  of  notice,  under  ordinary  circumstances,  to 
terminate  the  character  of  a  common  carrier,  and  attach  that  of 
a  warehouseman,  and  the  nature  and  extent  of  such  notices  'dis- 
cussed but  not  decided.     Ibid. 

14.  Where- machinery  was  consigned  to  the  agent  of  a  rail- 
road company,  to  be  forwarded  to  the  plaintiff  over  the?  road, 
and  it  was  negligently  detained  for  some  time,  it  was  held,  that 
the  defendant  was  not  liable  as  a  common  carrier  for  this  neg- 
lect, but  only  as  a  bailee.  Foard  v.  Atlantic  and  North  Carolina 
Railroad  Company,'^  SotteB,  235. 

15.  Where  several  pieces  of  machinery  were  shipped  to  the 
agent  of  a  railroad  company,,  to  be  forwarded  to  the  plaintiff,  and 
they  were  described  in 'the  bill  of  lading  as  "three  pipes  in  one 
bundle  and  two  single  pipes/'  and  they  were  delivered  by  the  ship's 
agent  to  the  defendant's  agent,  who  had  a  copy  of  the  bill  of  lad- 
ing, and  by  some  means  the  direction  on  one  of  the  single  pipes 
was  obliterated,  so  that  it  was  not  forwarded ;  it  teas  held,  that 
the  defendant,  was  liable  for  negligence  isi  not  forwarding  such- 
pipe.     Ibid. 

1(5.  Where  goods  are  carried  on  a  railroad  from  one  station  to 
another,  it  the  owner  be  not  ready  to  receive  them  at  their  destina- 
tion, the  duty  of  the  railroad  company,  as  a  carrii  r,  is  discharg- 
ed, by  putting  the  goods  in  the  warehouse  of  the  company,  with- 
out giving  notice  to  the  owner  or  consignee.  N<  tl  v.  Wilmington 
and  Weldon  Railroad  Company,  8  Jones,  482. 

17.  The  agents  of  tin.' company  at  the  station  are  n  i  botind 
to  notify  thi  owner  or  consignee,  living  at  a  distance,  eithei  by 
mail  or  otherwise,  of  the  arrival  of  the  goods.      Ibid. 

1S8.  Wie  re  a  railroad  agent,  at  a  country  station,  received 
goods  into  the  company's  warehouse,  which  was  an  ordinary 
wooden  house,  kept  fastened  in  the  nijrht  time  with  iron  locks, 
holts  and  bars,  and!" in  like  manner  in  the  day  time  when  the 
agent,  who  resided  about  i>wj  hundred  yards  from  it,  was  absent, 


2%  CARR1 ER.— II.— CARTW  A  Y. 

it  was  held  to  lie  ordinary  care  which  the  company  'took  of  the 

goods,  and  that  it  was  not  liable   tor  a  loss  of  them  by  theft. 
1  bid. 


CARTWAY. 

1.  The  courts  have  no  authority  to  have  the  lands  of  the  citi- 
zens taken  for  a  cartway,  without  the  consent  of  tin'  owner,  ex- 
cept in  tlie  instance  provided  for  by  the  statute,  to  wit,  in  favor 
persons  "settled  upon  er  cultivating  any  land,  to  which  there  is 
no  public  road  loading,  ami  no  way  to  got  to  or  from  the  same, 
otherthan  by  crossing  other  persons1  land"  Therefore,  where 
there  was  a  public  road  to  which  access  might  be  had,  though 
not  so  convenient  for  the  petitioner,  as  the  cartway  prayed  for, 
it  was  held  that  the  cosrt  could  not  grant  the  petition.  Lea\. 
Johnston,  9  [red.,  15.     (See  Rev.  Code,  ch.  101,  see,  37.) 

2.  The  owner  of  a  tract  of  land,  who  does  not  reside  on  it,  nor 
lias  cultivated,  fenced,  or  in  any  wise  improved  any  part  of  it, 
but  has  only  used  it  as  a  range  for  cattle,  is  not  entitled  to  a 
private  way  over  the  adjoining  land  of  others,  under  the  act 
Key.  Stat.,  eh.  104,  see.  33.  Curni'K  v.  Doxey,  3  Jones,  23.  (See 
Rev.  C  tde,  eh.  101,  sec.  37.) 

3.  Under  the  act  Rev.  Stat.,,  eh.  104,  sic  33  ami  35,  a  peti- 
tioner "  bo  has  acquired  a  right,  under  an  order  of  court,  to  have 
a  cartway  over  the  Ian,!  of  another,  and  who  has  afterwards 
obtain  d  th  ■  title  to  such  land,  has  a  right  to  discontinue  and 
obstxicl  such  highway.  Jacocksv.  Newby,4:  Jones,  266.  (See 
Rev.  »'ede.  eh.  101,  sec.  37  and  38.) 

4.  !i,  the  order,  for  laying  out  a  cartway,  the  court  must  fix 
both  the  termini  of  the  way.     Burden  v.  Harmon,  7  Jones,  354. 

5.  Where  the  applicant  for  a  cartway,  over  the  land  of  another, 
nas  already  one  or  more  convenient  rights  of  way  over  the  land 
of  other  persons,  to  the  public  road  or  other  public  place  to  which 
She  seeks  access,  his  application  should  be  rejected;  and  if  an 
'order  for  such  a  cartway  have  been  previously  obtained,  the 
cartway  will  he  discontinued  on  the  petition  of  theowner  of  the 
land,  tinder  the  38th  section  of  the  lOlstchapter  of  the  Revised 
Code.     PKmmons.v.  Frisby,  1  Winst.,  201. 

i;  U  a  pers  <ri  petition  for  a  cartway,  under  the  Revised  Code, 
eli.  101,  sec.  37,  and  it  appear  that  lie  has  two  private  ways, 
though  not  cartways,  to  the  public  road  to  which  he  seeks 
access,  and  if  he  have  also,  by  parol  license,  an  unobstructed 
passage  through  the  lands  of  a  third  person  to  the  same  public 
road,  he  will  not  be  entitled  to  have  a  cartway  laid  off  for  him. 


CARTWAY.— CASE.— CATTLE,  &c.  207 

unless  it  appear  to  the  court,  that,  notwithstanding  such  private 
ways  and  license,  it  is  ''necessary,  reasonable  and  just,"  that 
the  petitioner  should  have  it.    Burgwyn  v.  Lochhart,!  Winst.,  269 


CASE. 

See  (Action  on  the  case.) 


CATTLE  AND  OTHER  LIVE  STOCK. 

1.  The  increase  of  cattle  ad  infinitum  belongs  to  the  owner  of 
the  original  stock.     Tysonv  Simpson,  2  Hay.,  147,  (321.) 

2.  Under  the  act  of  1777>  in  la  proceeding  by  warranl  to  re- 
cover t)i-  damages  done  by  cattle,  &c,  the  report  of  the  justices 
and  freeholders  as  to  the  state  of  the  plaintiff's  fences  is  final 
and  conclusive  between  the  parties.  Nelsons.  Sh  wart,  2  Murph., 
298.  S.  C.,  1  <';ir.  L.  R.,  287,  (29.)  (An  appeal  now  allowed, 
(See  Rev.  Code,  ch.  48,  sec.  5.) 

3.  The  penalty  under  the  act  oi  1741.  for  mismarking  cattle, 
could  not  lie  incurred  unless  the  offence  were  willfully  done. 
Hulin  v.  Biles,  N.  C.  Term  R,  192,(625.)  (The  offence  is  now 
(punishable  by  indictment,  see  Rev.  Code,  eh.  34,  sec,  57.) 

4.  Although  the  enclosed  land,  within  the  bounds  of  which 
the  1 1-;  i  ;pass  by  cattle  is  alleged  to  have  been  committed  bel  ug- 
■ed  to  more  than  one  person,  yet  the  actual  p  i]'-ii  ttore  of  the 
act.  where  the  fence  isinsufficii  nt,  are  liable  individually  under 

Ltute.     McKay  v.   Woodle,  6   [red.,  352.     (S<      t< 
ch.    18,  sec.  i  and  3.) 

5.  In  proceedings  under  the  act,  directing  how  damages  may 
b  -  recovered  for  injury  done  by  stock  to  enclosed  •■  rounds,  if  one 
of  the  parties  appeal  to  the  county  court  from  the  judgment  of 
the  justice,  the  ea.se  must  In- tried  byajuryas  in  other  suits, 
and  there  can  then  be  no  objection  received  to  any  irregularity 
in  the  the  proceedings  before  the  justice.     J\ 

8  Ired.,  96.     (See  Rev.  Code,  ch.  48,  sec.  5.) 

6.  A  per  on  is  not  liable  to  indictment  undei  the  Rev.  Code, 
ch.  34  s  -e.  ]>M.  For  injuring  cattle  or  other  stock  within  h  <  ■■  n 
field,  which  ;s  i  i  closed  and  under  cultivation.     State  v.    | 

6  Jones  276. 


208 


I    LTTLE  Ac.— CEETIORAEI.— L 


7.  Owners  of  cattle  in  this  State  are  not  bound  to  keep  them1 
within  enclosures,  so  as  to  prevent  them  from  going  upon  the 
Unenclosed  lands  of  of  others.  Laws  v.  North  Carolina  Bailroad 
Company,  7  Jones  468. 

8.  Where  a  sow,  having  a  bad  reputation  for  eating  young- 
poultry,  which  was  known  to  her  owner,  was  seen  with  a  duck 
in  her  mouth,  and  on  being  chased  dropped  it,  but  immediately 
again  ran  after  it,  ami  was  shot  by  the  owner  of  the  duck  while 
in  such  pursuit,  it  was  held,  that  he  was  justified  in  killing 
the  animal.     Morse  v.  Nixon,  8  Jones,  35. 

See  (Indictment— When  an  indictment  will  lie,  45-46.)  (In- 
dictment—  Form  and  matters  relating  thereto,  136.) 


CERTIORARI. 


I'  When  the  writ  iifallowaMe. 

tl    Of   proceedings    in    certiorari  nnd 
the  effect  of  the  writ. 


III.  Of  the  return'  tff  the  *rii.' 

IV.  Of  the  security  for  costs. 

V.  Certiorari  in  the  Supreme' Court. 


I.       WHEN    THE    WRIT    IS   ALLOWABLE. 


!.  Certiorari  is  the  proper  remedy  in  proceedings1  by  attach- 
ment, and  not  a  writ  (Sf  error.     Allen  v.-  Williams,  ?'■-  Hay,  17, 

2.  When  the  attorney  of  the  appellant  applied  ia,  feme  to  tho 
clerk  of  the  county  court  for  a  transcript  of  the  rescttd,  and  was 
told  by  him  that  he  had  not  time  then  to  prepare  it,-  but  that  he 
would  attend  to  it  in  time,- but  neglected  to  do  soi-'the  superior 
court  refused  a  certiorari.  BrickeU  v.  Bass,  1  Hay,  137,  (157.) 
(How  appeals  are  now  carried  up,  see  Rev.  Code,  en  4.) 

3.  After  a  party  has  prayed  an  appeal  and  offered  his  sureties, 
if  he  be  defeated  of  the  appeal  by  the  neglect,  onlission  or  delay 
of  the  clerk,  or  the  contrivance  of  the  opposite  party,  or  by  any 
improper  conduct  of  the  county  court,  he  shall  have  his  cause 
carried  up  by  certiorari     Chambers  v.  Smith,  1  11a;.,  366,  (420.) 

4.  The  distinction  between  writs  of  certiorari,  recordari\  false 
judgment  pone,  and  accedas  a  curiam  discussed  and  explained. 
Anonymous,  1  Hay.,  469,  (541.) 

5.  Notice  must  he  given  of  a  certiorari,  within  two  terms  after 
the  judgment  which  is  the  foundation  of  the  writ.  Williams 
v.  Gorman,  2  bay.,  [55.  (337.) 

ti.   Winn  an  appeal  is  not  given  by  law,  a  certiorari  is  the 
roper  remedy".     Beardon  v.  Guy,  2  Hay.,  245,  (436>.) 


CERTIORARI— I.  209 

7.  A  certiorari  is  not  grantable  to  remove  a  cause  from  the 
county  court  before  trial  especially  where  the  party  has  the 
right  lit'  appeal,  ami  the  county  court  has  exclusive,  original 
jurisdiction.     Street  v.  Clark,  Tay.,  15,  (11.) 

.1  Proceedings  before  a  single  justice  cannot  he  brought  before 
the  county  court  by  certiorari  or  other  writ,  but  only  by  appeal. 
Ab  zander  v.  Bateman,  Conf.  Rep.,  20,  (160.) 

9.  An  appeal   being  taken  from  the  county  to  the  superior 
court,  ami  security  not  having  been  given  in  proper  time,  tin-  latter 
court  dismissed  the  appeal,   hut  granted  a   writ   o 
Fryer  v.  Black re,  1  Murph.,  94,  S.  C,  2  Hay..  374,  (572.) 

10    Dhder  the  act  of  1807,  a  -:      n  dieted  in  the  county  court 

ui'  anj  o  i  ■  punishm  nt  of  which   i    tended  to  life,  limb 

or  member,  appeal,  and  if  that  wen    - 

-  Id  tlri!  he  was  entitled  to  a  writ  of  certiorari  to  carry 
his  case  to  the  su]  '.and  then  would   be  entitled  to  a 

trial  dc  novo.  Statev.  Washington,  2  Murph.,  100.  (Such  offences 
are  now  cognizable  in  the  superior  court  only.  See  Rev.  Code, 
eh.  107,  sec.  34.) 

11.  When  a  person  applies  for  the  extraordinary  remedy  of  a 

;  in  su  >w  a  good  reason  why  he  did  not  avail 
himself  of  the  ordinary  remedy  by  appeal ;  otherwis 
will  nut  In'  granted     McMillan  v.  Smith,  2  Car.  L.  1.'.  ?.">,  (173.) 

12.  When  a  party  swears  that  a  judgment  by  default  was 
taken  against  him  at  the  appearance  term,  which  he  was  pre- 
vented from  attending  by  a  violent  attack  of  sickness,  that  he 
applied  at  the  next  term  to  have  the  judgment  set  aside  which 
was  i  fused,  ami  that  he  has  merits,  a  a  rtiorari  will  he  granted 
him.     Dyer  v.  Rich,  _'  Car.,  L.  R.  610,  (413.) 

13.  When  the  clerk  of  the  county  court  acted  as  deputy  clerk 
i>f  the  superior  court,  and  proi  tised   the  appellant  to  tile  the 

,  and.  tii.  i  tually  place  the  papers  in  the 

office,  considered  them  as  filed,  and  so  informed  the  clerk  of  the 
superior  -I  the  papers  were  not  actually  filed  until  it 

was  too  late,  a  L     St 

L.  R.,  636  (440.) 

14.  Where  an  undue  allowance  I  'ovision  was  made 
to  a  widow,  a  distributee  was  held  entitled  toaeerfo'oi 

cogni    -.1  hi-  right  i  one 

ry,  X.  C.  Term  R              617.)  .      See 
R  -v.  C  de,ch.  !  18,  s<  c.  20.) 

15.  Every  |  i   i  by  an  i  d- 

mg  in  a  -hall,  upon  a  prop 

\'.  dits  shall  1 1  ■  ■  i    be  concluded  by  an  <■■'/'  rti    transaction, 

but  la-  shall  i  opportunity  of  atrial;  also   tin/ 

ily  remedy,  he  shall  have  that.     Ibid. 
Hi.  At  tl   :  time  when  it  was  the  duty  of  the  appellant  to  carry 
up  and  tile  the  transcript  of  the  record,  and  he  relied  upon  the 
14 


210  CERTIORARI.— I. 

deputy  cleric  to  do  it  for  him  failed,  and  he  through  fcKgetfulness,  a 
certiorari  was  denied.     Davis  v.  Marshall,  2  Hawks,  59. 

17.  Although  it  is  not  usual  to  permit  a  sheriff's  return  to  be 
contradicted  by  a  party,  yet  if  after  a  judgment  by  default,  he 
swears,  upon  applying  for  a  certiorari,  that  the  writ  had  never 
been  served  upon  him,  and  that  he  had  a  good  defence  to  the 
action,  the  judgment  will  be  set  aside  and  he  be  allowed  to 
plead.     Hunter  v.  Kirk,  4  Hawks,  277. 

IS.  Where  a  cause  is  removed  from  one  superior  court  to 
another,  the  latter  has  a  right  to  issue  a  writ  of  certiorari  to  the 
former, -directing  a  more  perfect  transcript  to  be  certified;  for 
the  right  of  issuing  writs  of  certiorari  is  not  founded  on  the  cir- 
cumstance that  the  court,  from  which  the  writ  issues,  is  superior 
to  that  to  which  it  is  directed;  but  upon  the  principle  that  all 
courts  have  the  right  to  issue  any  writ,  necessary  to  the  exercise 
of  their  powers.  State  v.  ColMns,  6  Dev-j  117.  S.  P.  Stale  v.  Eeid, 
1  Dev. -and  Bat,  377. 

19;  Where  an  opportunity  of  appealing  has  been  lost  by  the 
neglect  of  an  officer  of  the  law,  the  contrivance  of  the  opposite 
party,  or  improper  conduct  in  the  inferior  court,  a  certiorari  will 
be  granted,  without  reference  to  the  merits.  Collins  v.  Nail,  3 
Dev.,  224. 

20.  If  an  appeal  be  lost  by  the  neglect  of  the  appellant,  or  his 
agent,  a  certiorari  will  not  be  granted.  It  is  otherwise  where  it 
is  lost  by  the  accidental  inability  of  the  appellant  to  give  secur- 
ity for  the  appeal.  But  in  such  cases  it  is  not  granted  when 
applied  for,  merely  to  delay  the  other  party,  or  to  avoid  a  de- 
cision on  the  merits.      Ibid. 

21.  When  granted  the  appellant  may  be  laid  under  terms  not 
to  avail  himself  of  a  technical  advantage,  arising  from  a  mere 
informality.     Ibid. 

22.  Ignorance  of  the  act,  requiring  appeal  bonds  to  be  executed 
in  the  court  where  the  appeal  was  allowed,  will  not  entitle  the 
appellant  to  a  writ  of  certiorari.    Elliott  v.  Holliday,  3  Dev.,  377. 

23.  An  appellant,  who  1ms  tidied  to  file  hisappeal,  is  not  enti- 
tled to  a  certiorari  after  a  delay  of  three  terms.  He  should  apply 
as  soon  as  he  ean,  after  losing  the  benefit  of  his  appeal,  for  the 
writ  can  no  more  be  gr  into  d  to  one  who  is  dilatory  in  asking  for 
it,  than  it  can  be  to  one,  who  has  neglected  to  pray  an  appeal, 
when  in  his  power.     Erwin  v.  Encin,  3  Dev,,  52b. 

24.  A  judgment  by  default,  on  an  attachment  before  a  justice 
levied  on  land  and  returned  into  the  county  court  for  an  order 
of  sale,  may.  alter  execution  issued,  but  before  a  sale,  be  set  aside 
and  a  new 'trial  awarded  in  the  superior  court  upon  a  Writ  of 
certiorari,  directed  to  die  county  court,  and  founded  on  an  affidavit 
showing  merits  and  denying  notice  of  the  proceedings.  And 
the  writ  must  issue  to  the  county  court,  and  not  to  the  magis- 
trate giving  the  judgment,  because  the  county  court   alone  can 


CERTIORARI.— I.  211 

answer  to  it.  as  the  record  is  there.     Dowjan  v.  Arnold,  4  Dev.  99. 

25.  In  this  State,  the  certiorari  lies  either  to  correct  errors  of 
law,  as  a  writ  of  false  judgment,  or  as  a  substitute  for  an  appeal. 
It  issues,  where  the  party  lias  been  improperly  deprived  of  hie 
appeal,  as  a  matter  of  course;  when  he  has  lost  the  appeal  by 
accident,  upon  affidavits  showing  prima  fade  a  case  of  merits; 
and  in  the  latter  ease,  if  on  the  return  of  the  writ  the  merits 
sworn  to  be  not  answered  by  affidavits  on  the  otherside,  the  first 
judgment  is  set  aside,  and  a  new  trial  had  in  the  superior  court. 
Ibid. 

26.  In  these  eases  the  certiorari  has  the  effect  of  the  appeal 
for  which  it  is  substituted  in  annulling-  the  judgment  and  giving 
a  trial  de  novo;  and  it  may  be  awarded  upon  a  proper  case,  so 
lung  as  the  parties  alone  are  interested,  but  not  after  third  per- 
sons acquire  an  interest,  as  after  a  sale  under  the  judgment; 
there,  the  only  remedy  is  by  writ  of  error  or  false  judgment. 
Ibid. 

27.  The  writ  of  certiorari  is  used  in  this  State  as  a  writ  of  false 
judgment,  and  as  a  substitute  for  an  appeal;  and  it  never  has 
been  allowed  in  lieu  of  a  writ  of  error.  The  latter  writ  boing 
entirely  effleacious  for  five  years,  there  is  no  need  of  the  former 
during  that  time,  and,  after  its  expiration,  the  certiorari  being 
discretionary  should  not  be  granted,  as  thereby  the  limitation 
to  writs  oi  error  would  be  avoided.  Swaim  v.  Fentress  ,4 
Dev.,  601. 

28.  The  opinion  of  counsel,  as  to  the  probable  issue  of  a  suit, 
does  not  justify  a  party  in  neglecting  to  appeal  and  will  not 
entitle  him  to  a  certiorari.   Ibid. 

29.  A  certiorari  may  issue  as  often  as  it  appears  to  the  court, 
that  there  is  reason  to  believe  the  transcript  imperfect,  until  one 
is  obtained  to  which  neither  party  can  object.  State  x.Beid, 
1  Dev  and  Bat,  377. 

30.  In  extraordinary  cases,  as  where  two  transcripts  are  sent 
contradictory  to  each  other,  and  the  parties  do  not  agree  which 
is  corr  ict,  the  court,  instead  of  ordering  a  certiorari,  will  direct 
the  officer  to  attend  with  the  original  record.     Ibid. 

31.  A  writ  of  ce  tiorari  ought  not  to  be  allowed  to  enable  a 
person  to  rake  advantage  of  a  matter  occurring  subsequently  to 
the  first  trial;  much  less  to  create  a  defence  by  some  act  to  be 
done  posterior  to  the  issuing  of  the  ceitiorari.  Hence,  where 
the  partii  s  to  a  ca,  sa.  bond,  conditioned  to  appear  in  the  county 
court,  to  take  the  benefit  of  the  act  for  the  relief  of  insolvent 
debtors,  were  called,  and.  failing  to  appear,  judgment  was  given 
against  them  and  their  sureties,  it  was  held  that  the  sureties. 
were  not,  upon  the  allegation  of  having  been  prevented  by  the 
fraud  of  the  plaintiff's  agent  from  making  a  surrender  of  their 
principals  in   discharge  of  themselves,  entitled  to  the  writ  of 


212  CERTIORARI.— I. 

certiorari,  to  enable  them  to  make  it  in  the  superior  court    Bitts 
v.  Franklin,  4  Dev.  and  Bat.,  465. 

32.  The  fraud  in  such  casernay,  perhaps,  authorize  the  court, 
in  which  judgment  was  given,  to  afford  relief.  At  all  events  it 
is  the  proper  .subject  of  jurisdiction  of  that  court,  which  consid- 
ers things  done  that  might  and  ought  to  have  been  done.  The 
relief  is  on  the  equity,  and  not  the  law  side  of  the  court.     I  hid. 

33.  A  certiorari  has  been  properly  allowed  where  the  judgment 
was  by  default;  and  upon  it  the  judgment  has  been  se1  aside 
and  the  defendant  allowed  to  plead;  but  that  can  never  be  done 
unless  the  party  shows  two  things:  first,  an  excuse  for  the  laches 
in  not  pleading,  and,  secondly,  a  good  defence  existing  at  the 
time  when  he  ought  to  have  pleaded.     Ibid. 

34.  A  certiorari  will  not  be  granted,  where  a  writ  of  error  will 
lie.     Petty  v.  Jones,  1  [red.,  408. 

35.  Where  there  is  a  summary  proceeding  of  an  inferior  tri- 
bunal, as  in  a  ease  under  the  processioning  act,  not  according  to 
the  course  of  the  common  law,  the  party  is  entitled,  ex  debito 
jvsticice,  to  a  certiorari,  to  bring  it  up  for  review  in  the  matter 
of  law.     Matthews  v.  Matthews,  4  [red..,  155. 

36.  An  allegation  that  the  party  had  a  good  defence  at  law, 
which  he  lost  without  his  fault  but  by  the  fault  of  the  other 
party,  will  not  entitle  him  to  a  certiorari.  It'  the  other  party 
insists  upon  an  unconscientious  advantage  at  law,  the  proper 
remedy  is  to  be  sought  in  a  court  of  equity.  Watts  v.  Boole,  4 
Ired.,  331. 

37.  One  party,  to  a  joint  judgment  against  two.  cannot  alone. 
take  up  his  case  to  a  superior  court,  by  a  writ  ol  certiorari.  Oley 
v.  R  >gers,  4  lied.,  534.  (It  may  be  presumed  that  he  could  now 
under  the  effect  of  the  Rev.  Code,  ch,  i,  see.  27.) 

38.  In  tlie  case  of  a  petition  for  the  condemnation  of  an  acre 
of  land  for  the  site  of  a  public  mill,  under  the  act  of  assembly, 
where  the  court  order*  d  a  condemnation  of  the  laud  ami  refused 
an  appeal  from   that  order  to   the  party  owning  the  land,  it  was 

:l  it  was  proper  in  the  superior  court  to  order  a certion  ri  to 
bring  up  the  proceedings  before  it.     Brooks  v.  Morgu     5  Ired., 

481.       (  Si  -     III   V.   (  !odl  .   eli.    7  I.   see.   2. ) 

Uthough  an  appeal,  which  is  in  the  nature  of  a  new  trial 
on  the  facts  and  merits,  cannot  be  sustained,  unless  expressly 
given  by  statute,  the  superior  court  will  always  control  in- 
ferior magistrates  and  tribunals,  in  matters  for  which  a  writ  of 
error  does  not  lie,  by  certiorari  to  brine'  up  their  judicial  pro- 
be reviewed  in  the  matter  of  law;  for,  in  such  case, 
the  a  rtiorari  is  in  effect  a  writ  of  error,  as  all  that  can  be  dis- 
cussed in  the  court  above  is  the  form  and  the  efficiency  of  the 
proceedings,  as  (hey  appear  upon  the  face  of  them.     J  hid. 

40.  Where  a  tenant  tor  a  year  was  ejected  by  I'm  ce  of  the  stat- 
ute in  relation  to  forcible  entry  and  detainer,  whatever  the  er- 
rors and  unlawfulness  of  the  proceedings  against    such  tenant 


CERTIORARI— I  213 

may  be,  the  landlord,  not  being  a  party  to  the  proceedings,  has  no 
right  tci  intervene  by  a  writ  of  certiorari.  Stevens  v.  Smith,  8 
Ired,  38. 

41.  From  the  judgment  of  a  justice,  on  an  offence  committed 
by  a  slave  of  which  lie  lias  original  jurisdiction,  an  appeal  by 
the  master  lies  to  the  county  court,  but  not  from  that  to  the  su- 
perior court.  But  the  master  may,  as  in  other  decisions  by  an 
inferior  tribunal,  have  the  case  re-examined  in  the  superior 
court,  upon  a  writ  of  certiorari  or  writ  of  error.  State  v.  Marley 
8  Ired.,  48.  (Appeals  from  the  justice  to  the  superior  court  are 
now  given.     See  Rev.  Code,  ch.  107.,  sec.  33.) 

42.  Where  a  party  applies  for  a  certiorari,  upon  the  ground 
that  a  judgmenl  has  been  improperly  rendered  against  him  by 
default  in  the  court  below,  he  must  set  forth,  in  his  petition,  not 
only  an  excuse  tor  his  lulus  in  not  pleading,  !m)  also  a  good  de* 
fenc<  existing  at  the  time  when  he  ought  to  have  pleaded. 
Brigman  v.  Jercis,  8  Ired.  451. 

4;'..  Where  an  attachment  was  isued  by  a  justice  lor  a  sum 
above  his  jurisdiction,  ami  was  made  returnable  before  him,  or 
some  other  justice,  and  where  the  county  court  permitted  the 
plaintiff  to  amend  the  process  by  making  it  returnable  to  the 
county  court,  ami  that  court  also  permitted  the  defendant  to  ap- 
peal upon  his  giving  an  appeal  bond,  though  he  had  not  replev- 
ied: //  was  held,  that  the  defendant  was  entitled  to  appeal,  though 
lie  had  not  replevied,  and,  further,  that  if  he  were  at  the  time 
unable  to  find  sureties  for  the  appeal,  he  was  entitled  to  a  certio- 
rari without  showing  any  merits  in  fact,  the  case  disclosing  that 
there  were  questions  of  laiv,  which  lie  had  a  right  to  have  decided 
by  the  superior  court.     Britt  v.  Patterson,  '.'  Ired.,  197. 

44.  Where  a  judgment  was  obtained  before  a  justice  against 
a  husband  anil  wile,  on  a  bond  executed  by  them  during  their 
coverture,  and  an  execution  levied  on  tin/  land  of  the  wit'-',  and 
returned  to  tin.-  county  court,  where,  after  the  death  of  the  hus- 
band, an  order  was  made  for  the  sale  of  the  land,  it  was  held, 
that  the  wife,  was  entitled  to  a  certiorari  returnable  to  the  su- 
peri<  ir  court.     Lassiter  v.  Harper^  10  Ired..  392. 

45.  When  the  proceedings  of  an  inferior  tribunal  are  not  ac- 
cording to  the  rules  of  the  common  law.  the  aggrieved  party  is 
entitled  to  a  certiorari,  but  only  to  have  them  reviewed  as  to  mat- 
ters   i  law.     State  v.  Bill  13  Ired.,  373. 

4(i.  If  a  party,  who  is  entitled  to  an  appeal  from  an  inferior  to 
a  superior  tribunal,  is  denied  that  right,  or  deprived  of  it  by 
fraud,  ei-  accident,  or  inability  to  comply  with  the  requirements 
of  the  law,  he  is  entitled  to  have  his  whole  case,  both  as  to  law 
.and  tact,  lii-ouglit  up  by  certiorari,  and  to  a  trial  de  novo  in  the 
superior  court.     Ibid. 

47.  Where  a  party  is  denied  his  right  of  appeal,  or  is  deprived 
of  it   by  fraud  or   accident,  or  inability  to  comply  at    the  time 


214  CERTIORARI.— I. 

with  the  requirements  of  the  law,  he  may  have  the  writ  of  cer- 
tiorari. But  it  is  otherwise,  when  his  failure  to  appeal  or  make 
defence  was  the  result  of  his  own  negligence,  or  where  lie  trust- 
ed his  interests  to  an  unfaithful  agent.  Baker  v.  Halsh  ad, 
Busb.  41. 

48.  Where  a  judgment  was  obtained  in  the  county  court 
against  Band  L,  upon  a  note  which  l'>  had  signed  in  blank  forL, 
for  renewal  at  bank,  and  which  L  had  altered  by  erasure,  and 
filled  upand  transferred  to  H,  and  B  had  trusted  to  1.  to  employ 
oonnsel  to  enter  pleas  in  bar,  who  suffered  judgment  to  lie  taken 
against  both;  it  teas  held,  that  B  was  not  entitled  to  the  writ  of 
certiorari.     Ibid. 

49.  Win tc,  1  >y  a  private  act  al  lolishing  jury  trials  in  the  county 
courts  of  Richmond  county,  no  provision  was  made  for  removing 
from  the  said  court,  to  the  superior  court,  cases  where  free 
negroes  were  charged  with  unlawfully  migrating  into  this  State, 
the  proper  course  would  be  to  remove  the  same  by  a  writ  of 
certiorari  to  the  superior  court  for  trial;  but  if  the  parties  con- 
sent to  the  removal,  the  writ  of  certiorari  is  dispensed  with,  and 
the  superior  court  will  acquire  jurisdiction  without  it.  State  v. 
Jacobs,  Busb.  218. 

50.  The  proceedings  of  inferior  tribunals,  which  are  subject  to 
revision  in  a  higher  court,  must  be  of  &  judicial  nature,  and,  it 
would  seem,  must  be  such  as  are  not  merely  discretionary. 
Hence,  an  order  of  a  county  court  granting  license  to  retail  spir- 
ituous liquors  is  either  an  act  merely  ministerial,  or  it  judicial, 
discretionary  in  its  character,  and  therefore  not  the  subject  of 
review  by  appeal  or  certiorari.  The  Intendant  and  Commissioner^ 
of  Raleigh  v.  Kane,  2  Jones,  2.SS. 

51.  The  act  of  1850,  which  makes  it  necessary  for  an  appli- 
cant for  a  license  to  retail  spirits  within  the  city  of  Raleigh  to 
city,  does  not  take  away  from  the  county  court  its  discretion  in 
produce  the  written  permission  of  the  commissioners  of  said 
granting  or  refusing  a  license;  and  the  exercise  of  the  power 
cannot,  therefore,  be  reviewed  upon  an  appeal  or  by  a  writ  of 
certiorari.      Ibid. 

52.  When,  by  an  act  of  assembly,  jury  trials  were  abolished 
in  the  county  courts  of  a  particular  county,  and  an  issue  of  de- 
visavit  ret  nan  was  made  up  in  such  court,  it  was  Jteldth&i  in  the 
absence  of  a  provision  in  the  act  for  removing  the  issue  to  the  su- 
perior court  for  trial,  the  proper  mode  fordoing  so  was  by  a  writ 
of  certiorari,  though  it  might  be  done  by  consent  of  parties, 
which  would  make  the  writ  unnecessary,  and  that  an  order  ot 
removal  simply  was  to  be  taken  to  be  one  by  consent.  Thompson 
v.  Floyd,  '2  Jones,  .Hi:!. 

53.  Where,  upon  the  appearace  of  an  insolvent  at  the  county 
court  where  jury  trials  were  abolished,  a  suggestion  of  fraud 
was  made,  but  no  specifications  were  filed  in  that  court,  it  was  held 


CERTIORARI.— I.  215 

that  the  cause  was  not  in  a  condition  to  be  taken  to  the  superior 
court  by  certiorari,  or  otherwise.  HcLaugMin  v.  McLaughlin, 
2  Jones,  319. 

54.  Where  a  party  to  a  suit  is  guilty  of  laches  in  failing  to 
enter  a  defence  to  a  note  sued  on,  which  he  alleges  to  have  been 
a  forgery,  and  also  in  failing  to  attend  the  i  ounty  court  in  which 
the  judgment  is  entered  up,  and  to  take  an  appeal,  he  is  not  en- 
titled to  a  certiorari  to  have  his  -ease  taken  up  to  the  superior 
court.     Rule  v.  Council,  3  Jones,  33. 

55.  Where  a  party  prays  an  appearand  the  court  refuses  to 
allow  it.  or  where  he  is  unable  at  the  time  to  give  security  for 
the  aippeal  which  he  has  prayed,  a  certiorari  is  a  matter  of 
course.  But  where  an  appeal  has  not  been  prayed  a  certiorari  is  not 
a  matter  of  course  and  the  party,  in  such  case,  must  account  in  his 
petition  for  the  fact  that  an  appeal  was  not  prayed,  and  he  must 
state  his  belief  that  he  has  merits,  and  set  forth  the  gr<  muds  of  that 
belief;  and  he  must  be  able  to  prove  the  allegations  which  account 
for  the  fact  that  no  appeal  was  prayed,  but  he  need  not  prove 
the  allegation  as  to  merits.     Bledsoe  v.  Snow,  3  Jones,  99. 

515.  Where  the  parties  to  a  suit  agreed  at  the  trial  term  that 
the  matter  should  be  left  to  arbitration,  and  a  day  was  appoint- 
ed for  that  purpose  which  was  after  the  term,  and  the  defend- 
ant left  court  under  an  impression  that  the  matter  was  not  to 
be  taken  up  at  that  term,  but  the  plaintiff  got  two  out  of  three 
of  the  arbitrators  to  Bign  an  award,  pretending  that  the  matter 
had  li  :en  settled  between  the  parties  themselves,  and,  by  exhib- 
iting such  award  to  the  defendant's  counsel,  induced  him  to 
withdraw  his  opposition  to  the  entry  of  a  judgment,  of  which 
tic  defendant  had  no  knowledge  until  the  term  had  past,  and  it 
appearing  from  the  facts  stated  that  the  party  had  merits,  a 
writ  lit'  certiorari  was  granted,  and  a  new  trial  ordered.     Ibid, 

57.  Where,  the  petitioner  alleges  that  he  has  good  reasons  to 
believe  and  does  believe  that  the  debt,  fur  which  he  had  been 
sued  had  been  paid,  and  shows  facts  and  circumstances  to  sus- 
tain his  opinion;  and  furthen  shows  that  he  did  not  attend  the 
trial  of  the  cause  in  the  county  court,  because  he  was  told  by 
the  plaintiff's  counsel  tint  it  would  be  dismissed  at  that  term 
at  the  plaintiff's  cost,  but  that,  nevertheless,  a  judgment  by  de- 
fault had  been  taken  against  him,  he  is  entitled  to  a  writ 
<•-  rtiorari  to  have  his  case  taken  to  the  superior  court,  so  as  to 
give  him  an  opportunity  to  make  his  defence.  I/unceford  v.  J/e- 
Pherson,  3  Jones,  174. 

58.  Where  a  party  is  deprived,  by  the  fraud  of  his  opponent,  of 
the  opportunity  of  making  a  defenee  in  the  county  court,  which 
can  be  made  in  that  court  only,  his  only  relief  is  by  a  bill  in 
equity;  but  if  in  such  case  the  defence  be  such  an  one  as  can 
be  mad"  in  the  superior  court  as  well  as  in  the  county  court, 
.then  his  proper  remedj  is  by  a  writ  of  certiorari      Ibid. 

59.  Besides  the  ordinary  office  of  supplying  the  place  of  an 


216  CERTIORARI.— I. 

appeal  under  certain  circumstances,  the  writ  of  certiorari  may 
be  used  in  this  State  as  a  writ  of  error;  in  which  case,  however, 
the  only  matter,  that  can  be  considered,  is  the  error  alleged  to  be 
apparent  on  the  face  of  the  record.  Sdrtsfield  v.  Jones,  4  Jones, 
309. 

60.  Where  a  party  in  the  county  court  prayed  an  appeal 
which  was  granted,  and  tendered  two  good  sureties,  one  of 
whom  was  prevented  from  signing  the  bond  at  the  time  by  the 
fault  of  the  clerk,  and  the  necessity,  on  account  of  the  weather 
and  of  his  health,  for  his  leaving  the  court  before  he  could  exe- 
cute the  bond,  it  was  held,  that  the  party  was  entitled  to  a  cer- 
tiorari, without  reference  to  the  merits  of  the  cause.  JI,  <  'onneU 
v.  Caldwell,  6  Jones,  469. 

61.  Where  the  petitioner  for  a  certiorari  stated  that  he  was 
detained  from  court  by  severe  sickness,  that  his  counsel  prayed 
an  appeal,  but  he  was  prevented  from  giving  the  necessary 
security  therefor  on  account  of  such  sickness,  it  was  held  that  ho 
was  entitled  to  the  benefit  of  the  writ.  Sharpe  v.  McElwee,  8 
Jones,  115. 

62.  Where  a  judgment  had  been  rendered  in  the  county  court 
against  a  surety  on  a  bail  bond,  and  he  filed  a  petition  for  a  cefa 
Uorari.  stating  that  he  expected  to  be  able  to  discharge  himself 
from  liability  by  the  next  term  of  tbe  superior  court,  by  a  sur- 
render of  his  principal,  it  was  held,  that  this  was  not  to  be  con- 
sidered as  an  appeal  for  mere  delay,  and  that  he  was  entitled  to 
the  writ  of  certiorari.     Ibid. 

63.  WheVe  the  principal  obligor  in  a  ca.  set.  bond  was  called 
in  the  enmity  court,  and  failing  to  appear,  judgment  was  rendered 
against  him  and  his  surety,  it  was  held,  that  the  fact  that  the 
principal  was  sick  and  unable  to  attend  the  term,  at  which  he 
was  bound  to  appear,  was  not  sufficient  to  entitle  the  surety  to 
a  certiorari  to  have  the  case  taken  to  the  superior  court.  Bids. 
v.  Arnold,  8  Jones.  233. 

64.  Where  a  writ  of  lunacy  was  issued  by  a  county  court,  and 
a  trial  had  before  a  jury,  and  a,  verdict  rendered  finding  the  per- 
son rum  compos,  which  was  confirmed  by  the  court  issuing 
the  writ  and  a  guardian  appointed,  all  in  the  absence  of  such 
person  and  without  notice  to  her,  and  it  appeared  that  she  had 
applied  to  a -lodge  for  a  certiorari,  which  was  refused  mi  an 
erroneous  ground,  and  she  then,  under  advice  of  counsel,  insti- 
tuted a  suit  in  equity,  which  failed  for  want  of  jurisdiction,  and 
she  swore  to  merits,  it  was  held,  on  a  petition  setting  forth  these 
matters,  that  the  petitioner  was  entitled  to  a  writ  of  certiorari  to 
taken])  her  case  to  the  superior  court,  where  she  might  have 
another  trial.     DoweU  v.  Jacks.  *  Jones,  387. 

See  (Clerks  and  Clerks  and  Masters — Of  their  election  or  ap- 
pointment, 3.)  (Contempt,  8.)  (Forcible  Entry  and  Detainer, 
14-15-16.)     (Habeas  Corpus,  5-6-7.) 


CERTIORARI.— II.  21T 

It.       OF    PROCEEDINGS  IX    CERTIORARI,    AND    OF  THE    EFFECT    OF    THE    WRIT. 

1.  If  a  cause  brought  up  by  certiorari  be  dismissed,  the  court 
must  order  a  procedendo.     Dawsey  v.  Davis,  1  Hay..  280,  (323.) 

2.  When  a  cause  is  removed  by  certiorari,  granted  by  a  Judge 
out  of  court,  it  must  be  placed  on  the  argument  docket,  and  the 
affidavits  of  the  other  party  may  be  received  to  show  the  impro- 
priety nt  granting  a  new  trial.  And  in  such  case,  the  court 
will  m  >t  grant  a  new  trial,  until  both  sides  can,  if  they  choose, 
hie  affidavits.     Ibid.     S.  P.,  Anonymous,  Ibid.,  '■'>*>'.  (  121.) 

3.  It  the  certiorari  be  obtained  in  court,  upon  a  rule  made  upon 
the  other  party  to  show  cause,  and  upon  argument  had  upon 
that  rule,  the  cause  when  removed  should  be  placed  immediately 
upoii  the  trial  docket,  without  further  argument.  Ibid.  S.  P. 
Ibid.      Dawsey  v.  Davis,  1  Hay.,  280,  (323.) 

4.  If  a  certiorari  be  obtained  to  remove  a  cause  upon  the 
ground  that  an  appeal,  to  which  the  party  was  entitled,  had 
been  refused  in  the  court  below,  and  this  fact  be  admitted  by 
the  other  party,  the  ease  will  be  placed  upon  the  trial  docket, 
without  showing  any  other  cause.  Anonymous,  1  Ha  v.,  ;>U2. 
(349.) 

5.  When  a  a  rtiorari  is  granted  in  open  court  upon  affidavits 
alone,  without  a  rule  to  show  cause,  it  is  in  the  same  situation 
with  a  a  rtiorari  granted  by  a  Judge  out  of  court;  and  no  new 
trial  can  be  granted,  until  the-  adverse  party  lias  had  an  oppor- 
tunity to  show  cause  against  it.     Anonymous,  1   Hay.,  :';ii7.  (421) 

6.  When  a  new  trial  was  granted  on  a  certiorari  in  a  <■■!,■>  at 
cause,  the  cause  was  ordered  to  tic  county  court  for  trial,  that 
court  only  ha  vim;-  jurisdiction.  Henry  v.  Heritage,  2  Hay.,  38, 
(201.)      '  "J  _  J 

7.  If  a  certiorari  be  obtained  on  an  affidavit,  stating  the 
grounds  of  moving  for  a  new  trial,  which  is  not  contradicted  by 
counter  affidavits,  there  shall  be  a  new  trial.  Reardon  v.  Guy, 
2  Hay.  245,  (4:',."..) 

8.  Affidavits  may  lie  read  to  support  the  affidavit  on  which 
the  certiorari  was  granted,  as  well  as  to  contradict  that  of  the 
defendant  to  the  writ;  and  depositions,  taken  in  a  suit  then  penoV 
ing  between  the  same  parties,  may  be  read  upon  a  motion  todis- 
miss  the  certiorari.     Led&etter  v.  Loftin,  1  Murph.,  1st. 

9.  The  plaintiff  in  a  writ  of  certiorari  is  entitled  to  a  continu- 
ance "t'  his  cause  to  procure  further  affidavits,  if  he  can  show  to 
the  court  that  he  cannot  procure  them  at  the  term  at  which  the 

ivits   are  filed.       Vervelv.   Trexler,  1  Murph., 
438. 

10.  If,  after  a  judgment  against  a  defendant,  he  be  taken  un- 
der a  ra.  sa.,  and  give  a  bond  for  keeping  within  the  prison 
founds,  and  afterwards  obtain  a  certiorari,  to  take  the  cause  to 
the  superior  court,  and  it  is  there  ordered  to  be  put  on  the  trial 


218  CERTIORARI.— II.-III. 

docket,  it  will  have  the  effect  of  an  appeal,  and  vacate  the  judg- 
ment, and  render  the  prison  bound  bond  a  nullity.  Gidney  v. 
Ealsey,  2  Hawk,  550, 

11.  There  is  but  a  very  remote  analogy  between  the  writ  of 
certiorari,  as  used  in  England,  and  in  this  State.  Here  it  is  in- 
variably granted  after  a  trial  in  the  inferior  court;  a  case  must 
be  made  out  on  the  merits,  upon  affidavit,  excepl  where  it  issues 
to  bring-  up  a  record,  appealed  from,  but  not  filed  in  time;  and 
the  question  always  is  in  the  superior  court,  whether  there  shall 
be  a  new  1  rial.  Security,  too.  must  be  taken  by  the  clerk  of  the 
county  court,  to  which  it  issues,  in  the  same  manner  as  an  ap- 
peal. Ibid.  (The  clerk'  of  the  superior  court  may  also  now  take 
bond.     See  Rev.  Code.,  eh.  4,  sec.  l(i.) 

12.  The  affidavit  for  a  certiorari  is  properly  no  part  of  the  re- 
cord.    Mushed  v.  3Ioore,  4  Dev.  and  Bat.,  124. 

13.  Where  certain  defendants,  securities  to  a  sheriff's  bond, 
had  obtained  a  certiorari  to  bring  up  a  case  from  the  county 
court,  where  judgment  had  been  rendered  against  them  without 
due  notice,  and  upon  the  return  of  the  certiorari  the  superior 
court  directed  the  case  to  be  placed  on  the  trial  docket,  and  that 
a  new  trial  be  granted,  and  when  the  case  tame  on  for  trial, 
upon  the  motion  of  the  defendant,  ordered  the  suit  to  be  dis- 
missed, because  the  defendants  had  not  been  duly  served  with 
notice  as  directed  by  law,  it  /ran  held,  that  this  judgment  was 
erroneous,  and  that  the  parties  must  proceed  to  trial  upon  the 
merits  of  the  case.     Petty  v.  Jones,  1  Ired..  4o,x. 

14.  A  clerk  of  a  court,  to  whom  a  certiorari  has  been  directed, 
should  make  a  return  that  "in  obedience  to  the  writ  he  has 
sent  the  annexed  record,"  and  this  should  be  made  under  his 
hand  and  seal  of  office.     State  v.  Martin,  2  Ired.,  101. 

15.  In  sending  the  transcript  of  a  record  in  pursuance  of  a  ' 
certiorari,  from  one  court  to  another,  it  is  not  necessary  that  the 
transcript  should  be  affixed  to  the  writ  of  certiorari,  ( thoragh  it  is 
most  proper  that  it  should  be  so,)  provided  enough  appear  to 
show  the  court  into  which  it  is  certified,  that  it  is  in  truth  the 
proper  transcript.     Statev.  Carroll,  5  Ired.,  139. 

lii.  Where  a  certiorari  is  returned  to  court,  no  proceedings 
can  be  had  oil  it.  until  notice  of  its  return  has  been  given  to 
the  person,  against  whom  it  issued.  Bowman  v.  Foster,  11 
Ired.,  47. 

17.  A  party  who  is  brought  in  by  certiorari  may,  upon  motion 
on  the  ground  of  irregularity,  have  the  proceedings  dismissed, 
but  he  may,  if  he  choose,  waved  that  motion,  and  submit  to 
plead  to  the  action.      Ibid. 

III.   OK  THE  RETURN  OF  THE  WRIT. 

1.  A  certiorari  ought  to  be  returned  on  the  return  daymen- 


CERTIORARI— IIL-IV.  219 

tioned  therein,  and  if  not  so  returned,  nor  any  proceedings 
had  to  continue  it  in  court,  it  is,  like  other  writs,  discon- 
tinued, and  a  procedendo  must  issue.  Anonymous,  1  Hay.,  420, 
(484) 

2.  Writs  which  give  jurisdiction  to  a  court  must  be  returned, 
and  both  the  writ  and  the  return  must  appear  upon  the  record; 
but  this  is  unnecessary,  where  the  writ  was  issued  in  the  pro- 
gress of  a  cause,  and  it  appears  of  record  that  the  writ  was 
issued  and  the  return  made  in  pursuance  thereof  _\  writ  of  cer- 
tiorari to  certify  a  more  perfect  record  is  of  the  latter  descrip- 
tion.    State  v.  Collins,  3  Dev.,  117. 

I\ .       O-P    THE    SECURITY    FOR    COSTS. 

1.  The  court  may  order  the  plaintiff  in  a  certiorari  to  give 
security  for  the  costs.  Waller  v.  Brodie,  1  Hay.,  28,  (38.)  (Se- 
curity is  now  required  and  regulated  by  statute.  Rev.  Code,  eh. 
4,  see.  1G.) 

2.  If  a  bond  has  not  been  taken  from  a  party  obtaining  a  cer- 
tiorari previously  to  its  issuing,  the  superior  court  will  permit  a 
bond  to  be  given  when  it  is  returned.  Fox  v.  Steele,  1  Car.  L. 
R,  379,  (48.)  S.  P.,  Iiosseau  v.  Tliornberry,  2  Car.  L.  R.,  442, 
(32(5.) 

3.  A  set.  fa.  will  not  lie  on  such  a  bond,  because  it  is  not  a 
matter  of  record  nor  directed  by  the  act  of  Assembly.  Ibid. 
(For  the  remedy  on  such  bonds  now.  See  Revised  Code,  ch.  4, 
sec.  1(1.) 

4.  Where  the  condition  of  a  bond,  given  upon  obtaining  a  cer- 
tiorari, was,  that  the  obligor  should  make  his  personal  appear- 
ance "and  abide  by  and  stand  to  the  judgment  of  the  court,"  it 
was  held,  that  these  words  were  equivalent  to  "perform  the 
judgment  of  the  court,"  and  imposed  on  the  obligor  the  pay- 
ment of  the  sum  recovered  against  him,  although  the  bond  was 
made  payable  to  the  clerk  who  issued  the  certiorari.  Molton  v. 
Hooles,  3  Hawks,  342. 

5.  When  a  Judge's  order  directs  a  certiorari  to  issue  to  the 
county  court,  the  clerk  of  the  superior  court  may  issue  the  writ 
without  taking  security,  it  being  the  duty  of  the  clerk  of  the 
county  court  to  take  the  bond.  Judges  v.  Washington,  1  Dev., 
152.  (Either  clerk  may  now  take  it.  See  Revised  Code,  eh.  4, 
sec.  1G.) 

6.  Acertiorari,  being  intended  as  a  substitute  for  an  appeal,  must, 
be  allowed  on  the  same  terms  of  giving  a  similar  security.  Estes 
v.  Hairston,  1  Dev.,  354. 

7.  A  summary  judgment  may  properly  be  rendered  upon  a 
bond  given  upon  obtaining  a  certiorari.  Speight  v.  Wooten,  3 
Dev.,  327. 


220  CERTIORARI.— IV.  -V. 

8.  A  case  was  taken  from  the  county  to  the  superior  court  by 
a  writ  of  certiorari,  and,  after  the  trial  of  the  issues  in  the  supe- 
rior court,  the  sureties  for  the  appellant  at  the  same  term  sug- 
gested his  death,  but  the  court,  notwithstanding,  gave  judgment 
against  them  for  the  costs,  the  verdict  having  been  against 
their  principal;  and  if  was  held,  that  the  judgment  was  right: 
first,  because  the  sureties,  aot  being  parties  to  the  suit,  had  no 
right  to  make  the  suggestion :  secondly,  because,  as  the  issue  had 
just  been  tried,  it  must  be  intended,  that  the  death  had  taken 
place  during  the  term.      fVooktrd  v.  Woolard,  8  Ired.,  322. 

V.       CERTIORARI    IX    THE    SUPREME    COURT. 

1.  In  considering  the  ease  of  a  certiorari,  on  an  appeal  from  a 
decision  of  the  superior  court  thereon,  the  supreme  court  will 
not  notice  affidavits  on  either  side',  filed  since  the  cause  was 
transferred  to  that  court.     Mc3IiUan  v.  Smith,  2  Car.  L.  1!. .  7.r>, 

2.  A  judge  of  the  supreme  court  has  no  power  granted  him 
to  issue  a  writ  of  certiorari  in  vacation,  returnable  to  that  court; 
application  for  the  writ  must  be  made  to  the  court  while  in  ses- 
sion. Rodman  v.  Austin,  3  Murph.,  252.  (See  Rev.  Code, 
ch.  33. ) 

3.  When  the  transcript  of  a  case,  filed  in  the  supreme  court 
upon  an  appeal,  is  imperfect  or  erroneous,  a  diminution  of  the 
record  may  be  suggested  and  a  certiorari  obtained.  Smith,  v. 
Kelly,  •">  Murph.,  507. 

4.  Where  the  appellant  has  failed  to  bring  up  the  appeal  bond 
along  with  the  transcript,  and  swears  that  neither  he  nor  the 
clerk  knew  it  was  his  duty  to  do  so,  and  that  lie  did  not 
intend  to  abandon  hisappeal,  he  shall  have  a  certiorari  to  bring 
it  up.     Manning  v.  Sawyer,  1   Hawks,  37. 

5.  When  an  accident  prevents  an  appellant  from  bringing  up 
hisappeal,  the  supreme  court  will  grant  a  certiorari:  hut  not 
where  the  failure  is  caused  by  the  neglect  of  an  agent.  State  v. 
Williams,  2  Hawks,  100.     (it  is  now  the  duty  of  the   clerk   to 

semi  transcripts  to  the  supreme    court,     See  Rev.  Code,  ch.   4, 
sec.  2.3.) 

6.  Certiorari  granted  on  affidavit  of  appellant,  that  he  had 
applied  in  due  lime  (,,  the  clerk  in  the  court  below  for  the  tran- 
script of  the  record,  and  was  informed  by  the  clerk  that  he  had 
.sent  ir  up,  hut  it  came  too  late.     Mcra  v.  Scales,  2   Hawks,  3(14. 

7.  A  certiorari  is  granted  by  the  supreme  court  on  tacts  un- 
controverted,  apparent  on  the  records  or  papers  before  the  court; 
but  a  rule  is  proper,  when  the  application  is  made  on  facts  not 
so  apparent;  but  in  all  cases,  the  facts  may  be  controverted, 
when  the  certiorari  is  returned  Ch&ry  v.  Slade,  2  Hawks, 
400. 


CERTIORARI.— V.  221 

8.  Where  the  affidavit  stated  that  the  sum  recovered  was  large, 
ami  the  defendant  being  in  a  strange  part  of  the  country  could 
not  at  ili"  time  give  security  for  an  appeal,  and  also  that  he  had 
merits,  certiorari  was  allowed.     Estes  v.   Hairston,  1  Dew,  354 

9.  When  an  appeal  had  been  given  pro  form  a  in  the  superior 
court,  and  an  appeal  taken  to  the  supreme  court  in  order  to  get 
its-decisions  upon  certain  questions,  but  the  judge  omitted  making 
up  a  case  during  the  term,  and  the  attorneys  of  the  parties  took 
the*  papers  from  the  clerk's  office  and  carried  them  off  for  the 
purpose  of  making  out  the  case,  and  did  not  return  them  to  the 
office  until  it  was  too  late  fertile  clerk  to  semi  up  the  transcript 
in  time,  which   he  swore  he  would    have  done  had   tin 

been  returned  soon  enough,  a  certiorari  will  be  granted  to  the 
appellant,  upon  his  deposing  rhai  he  never  intended  to  abandon 
his  appeal.     Murray  v  Sliaiiklin,  -1  Dev.  and  Bat.,  276. 

10.  Where  an  appellant  relies  upon  the  clerk  to  send  up  the 
transcript,  and  lie  makes  an  ineffectual  attempt  to  do  so,  the 
appellant  will  not  be  relieved  by  a  certiorari,  unless  the  attempt 
be  such,  as  if  made  by  the  party  himself,  would  have  been 
deemed  a  substantial  compliance  with  what  the  law  demands  of 
him.  If  the  transcript  had  been  mailed  in  due  time  to  reach 
(be  court,  il  is  probable  that  would  be  -  ed;  hut  the 
placing  of  it  in  the  hands  of  a  gentleman,  who  is  under  no 
special  obligations  to  attend  to  the  filing  of  it,  is  not  such  a 
compliance.  Hester  v.  Hester,  4  Dev.  and  Bat.,  311.  (As  the 
clerks  of  the  superior  court  are  now  required  to  file  the  tran- 
scripts, a  certiorari  would  be  granted  in  a  case  like  the  present, 
See  J.'eN .  ( 'ode,  ch.  1.  see.  25.) 

1-1.  A  certiorari  will  not  be  granted,  wher  ■  a  i  appi  al  has  not 

been  brought  up,  through  the  inattention  or  foi  -  of  the 

the  court,  whom  the  appellant  has  constituted  bis  agent 

to  send  up  the  appeal.     Cotton  v.  Clark,  1  fn  d.,  353.     S.  P.  Muz- 

eeHv.  Ln:  1  Ired.,  411.     (But  see  now  Rev.  Code,  ch.  -1.  s<  c.  25.) 

12.  Where  a  judgment  was  rend  party  in  the 
sup  srii  r  a  county  distant  from  h  <  ;idence, 
and  where  h    had  but   few  acquaintances;  where   he  had  been 

in  believe  I  he  ven  lid  of  the  jurj  w  i    ild  1   s  in  his  favor; 
when  the  court  did  not  decide  on  h  or  a  new  trial  mi- 

i  ist  day  of  the  term;  when  he  had,  prayed  an  i  ;  peal  to 
the  supreme  court,  which  was  granted  but  be  was  unable,  after 
,-dl  his  exertions,  to  obtain  sun  ties  for  tb  i  the  county 

where  the  suit  was  tried,  and  he  mon  over  i  et  forth  in  his  affi- 
davit that  he  had  merits  on  his  side,  thi  ■  an  ed  the  writ 
of  certiorari.     'Trice  v.  Yarboro                   I.,  11. 

13.  Where  an  appeal  from  the  superior  court  has  not  been 
filed  in  proper  time,  ^certiorari  will  nol  1.  unless  it 
be  applied  for  at  the  term  when  the  appeal  h  add  have  been 
tiled.     Stanlesv.  Mooring,  -i  Ired.,  215. 


222     CERTIORARI.— V.— CHALENGE  TO  FIGHT,  &c. 

14.  A  certiorari  may  be  ordered  by  the  supreme  court  to  bring 
up  the  transcript  of  a  more  perfect  record  of  the  superior  court, 
eveu  when  it  is  suggested  that  the  record  of  that  court  is  im- 
perfect, and  will  have  to  be  amended  before  the  transcript  is 
made  out,  and  the  certiorari,  even  in  a  capital  case,  will  be  made 
returnable  in  the  supreme  court,  at  such  time  as  will  afford  an 
opportunity  for  the  application  to  have  such  amendment  made. 
State  v.  Craton,  6  Ired.,  164. 

15.  Although  a  certiorari  has  once  been  issued  from  the  su- 
preme court,  upon  a  suggestion  of  a  defect  of  the  record,  and 
has  been  returned,  yet  the  court  may,  upon  a  further  sugges- 
tion, a  second  time  or  oftener  direct  writs  of  certiorari  to  issue, 
if  it  sees  reason  to  think  the  transcript  defective.-  Stale  v.  Mun- 
roe,  8  Ired.,  258. 

See  (Habeas  Corpus,  5-6-7.) 


CHALLENGE  TO  BIGHT. 

See  (fn-dictment-^When  an  indictment  will  lie,  19,)    (Indict- 
ment— Form  and  matter  relating  thereto,  35.) 


CHAMPERTY, 

See  (Maintenance  and  Champerty. ) 


CHOSE  IN  ACTION, 

1.  When  the  son  of  the  owner  of  a  slave  got  possession  of  him 
and  sold  him  to  the  defendant,  and  while  in  the  defendant's  pos- 
session, the  father  demanded  him  and  thensoldhim  to  the  plain- 
tiff, it  was  held  that  the  slave  was  not,  under  the  circumstances, 
a  chose  in  action,  and  that  the  purchaser  from  the  father  might 
recover  him  in  his  own  name.  Robertson  v.  Stewart,  1  Hay.j 
159,  (182.3 

2.  Where  A  turned  his  cattle  into  the  woods,  and  B  thinking 


CLERKS  AND  CLERKS  AND  MASTERS.  223 

that  one  of  them  was  his  his,  took  possession  of  it:  and  after- 
wards A,  in  ignorance  of  this,  sold  the  beast  to  C,  who  was  also 
ignorant  of  Fs  possession,  it  was  held  that  the  possession  was 
not  adverse,  so  as  to  create  a  elms,-  in  action,  and  that,  therefore, 
C  could  sue  B  for  the  beast  in  his  own  name.  Jfonjan  v. 
Itradtey,  3  Hawks,  559. 

3.  A  vendee  or  assignee  cannot  sue  in  his  own  name  for  proper- 
ty, which  the  vendor  or  assignor,  at  the  time'of  sale  or  assignment, 
could  only  recover  by  suit.     Steadman  RiddicJc,  4  Hawks.  29. 

4.  A  chose  in  action  comprehends  specific  chattels,  as  well  as 
the  right  to  reeover  a  debt  or  damages,  and  extends  to  every 
sort  of  chattel  property,  of  which  a  man  hath  not  actual  occu- 
pation, but  only  a  right  to  occupy  it,  a  suit  at  law  being  necessary 
to  recover  it,  on  account  of  an  adversary  claim.     !/»'</. 

5.  One  who  purchased  the  interest  in  achose  in  action,  without 
having  acquired  a  legal  title,  and  thus  is  authorized  as  agent  to 
bring  a  suit  at  law  in  the  name  of  his  assignor,  may  also,  in  the 
same  name,  prosecute  any  action  growing  out  of  the  same  and 
collateral  to  it;  as,  in  this  case,  an  action  against  a  sheriff  for 
not  serving,  in  due  time,  a  notice  to  take  depositions,  placed  in  his 
hands  by  such  assignee.     Waterman  v.  Williamson,  13 'Ired.,  198. 


CLERKS  AND  CLERKS  AND  MASTERS. 

I.  Of  their  election  or  appointment.     I  III.  Of  the  responsibility  of  them  and 
II.   What  interest  they   have   in  their  their  sureties. 

offic  s.  |     IV    Deeds    executed     by     Clerke    and 

Masters. 

I.       OF    THEIR    ELECTION     OR    APPOINTMENT. 

1.  Where  a  person  lias  been  elected  clerk  under  the  act  of 
1832,  and  -it  the  proper  time  had  tendered  his  bolads,  which 
were  accepted  by  tfce  court,  and  he  inducted  into  office,  while 
the  former  clerk  was  present  in  court,  cognizant  of  what  was 
going  on  and  did  not  object  to  it,  but  surrendered  up  the  office 
and  records  to  the  new  clerk  in  term  time,  and  retired  from  the 
performance  of  the  duties  of  the  office  for  twelve  months  there- 
after, it  was  held,  that  such  conduct  in  the  old  clerk  amounted 
to  a  surrender  of  his  office  to  the  court,  and  justified  the  recep- 
tion and  induction  into  office  of  the  newly  elected  clerk.  Wil- 
liams v.  Somers,  1  Dev.  and  Hat.,  lib 

2.  Where  a  clerk  appointed  prior  to  1832,  during  good  be- 


224    CLERKS  AND  CLERKS  AND  MASTERS.— I.-IL-  III. 

havior,  was  in  court  when  a  person  elected  under  the  act  of  that 
year  was  admitted  as  clerk,  and  made  no  objections  to  the  court 
against  such  admission,  but  surrendered  the  books  and  papers 
to  the  aew  clerk,  and  likewise  neglected  to  tender  his  bonds, 
which  he  was  bound  by  law  to  renew  at  that  term,  it  was  laid 
that  such  conduct  amounted  to  an  abandonment  of  the  office, 
and  justified  the  admission  of  the  new  clerk.  Dickens  v.  Justices 
of  Person,  1  Dev.  and  Bat,  406. 

3.  The  county  court  is  constituted  the  tribunal  to  determine  con- 
tested  elections  for  clerk  iinil  neither  an  appeal  nor  a  certiorari 
can  l^e  supported  to  revise  its  decision.  Nor  is  the  party  against 
whom  tin'  decision  has  been  made  entitled  to  amandamui  unless 
he  swears,  that  if  the  county  court  had  made  the  proper  enquiry 
as  to  the  validity  of  the  votes  given  lor  tie.'  respective  eondidates, 
or,  if  it  should  be  made  now,  there  is  good  reason  to  believe  thai 
the  person  complaining,  and  not  the  other  candidate  was  .Inly 
elected.     Ex  'parte  DaugMry,  l>  [red.,  155. 

4.  If  a  person  think  himself  elected  clerk  of  the  county  court, 
instead  of  the  one  pronounced  by  the  said  court  to  have  been 
duly  elected,  his  remedy,  if  he  has  any,  is  by  a  writ  of  quo  ivar- 
ranto.    Ibid. 

.5.  Where  an  election  for  clerk  of  the  county  court  is  contested, 
the  party  contesting  should  !»•  confined  to  those  objections,  of 
which  he  has  given  the  opposite  party  the  legalnotice.     Ibid. 

See  (Constitution — Acts  which  have  been  declared  to  be  un- 
constitutional, 0.) 

II.        WHAT    INTEREST    THEY    HAVE    IN     THEIR    OFFICES. 

1.  A  clerk  appointed  under  the  act  of  180(1.  during  good  beha- 
viour had  aa  estate  in  his  office,  and  although  the  Legislature 
might  destroy  the  office,  and  by  consequence  the  estate  in  it, 
yet  the  act  of  L832,  (See  h'"Y.  Code,  el),  lii.  sec.  1.)  which  con- 
tinued the  office,  but  transferred  the  estate  in  it  to  another,  is 
unconstitutional  and  void.     Hoh  v.  Henderson,  -i  Lev.,  I. 

III.       OF    THE    RESPONSIBILITY    OF    THEM   AND    THEIR   SURETIES. 

1.  A  sale  of  real  estate  by  the  clerk  and  master  in  equity,  or- 
dered  by  the  courtunder  ads  oi  the  Assembly, athorizing  a  sale 
when  il  is  necessary  for  aa  equal  and  advantageous  division,  is 
an  official  act,  and  as  such  comes  within  the  scope  of  the  condi- 
tion of  his  bond.     Judges  v.  /',  ans,  2  Hawks,  93. 

2.  Lnder  the  act  of  1823,  for  the  promotion  of  agriculture, 
the  clerk,  who  is  proceeded  againsl  for  not  making  his  return, 
may  make  his  excuse  to  the  judge  of  tin.'  superior  court,  and  ot 
the  sufficiency  of  it  the  judge   must  decide  at   his  discretion; 


CLERKS  AND  CLERKS  AND  MASTERS.— III.       225 

and  the  decision  cannot  be  revised  upon  appeal  to  the  supreme 
court    State  v.  Saunders,  4  Hawks,  198.  (See  Rev.  Code,  en.  73.) 

3.  Before  the  act  of  1823,  authorizing  clerks  of  courts  to  re- 
ceive payment  of  judgments  before  execution  issued,  a  payment 
of  money  raised  upon  an  execution,  by  the  sheriff  to  the  clerk, 
and  a  receipt  of  it  by  him  as  clerk,  were  held  to  be  within  the 
condition  of  his  official  bond,  although  the  payment  was  made 
before  the  return  day  of  the  writ,  upon  which  the  money  was 
made.  Judges  v.  Williams,  1  Dev.,  42(>.  (Sec  Rev.  Code,  ch. 
31,  sec.  127. ) 

4.  The  act  of  1819,  requiring  clerksand  clerks  and  masters  to 
renew  their  bonds  annually,  does  not  make  their  offices  annual 
appointments,  but  gives  cumulative  securities  for  the  perfor- 
mance of  their  official  duties.  Oats  v.  Bryan,  3  Dev.,  151.  (See 
Rev.  C  »de,  el,-..  19,  see.  12  and  ch,  20,  sec  %.) 

5.  Norf-payment  of  money,  received  by  a  clerk  and  master 
officially,  may  be  assigned  as  a  breach  on  any  bond  given  by 
hiiu.     Ibid. 

6.  The  clerk  (fa  court,  having  inhis  possessions  bond,  which 
had  been  deposited  in  his  office  by  order  of  the  court,  and  which 
belonged  b  >■  o«  rtain  parties-  to  a  suit  pending  in  said  court,  trans- 
ferred the  bond  to  one  R,  who,  in  part  consideration  therefor,. 
gave  the  clerk  a  receipt  for  a  sun;  of  money  then  in  the 
hands  of  the  clerk  in  his  official  capacity,  and  belonging  to  the 
relators,  of  whom  R  was  the  guardian.  Afterwards  the  amount 
of  the  bond  was  recovered  from  R  by  the  persons  to  whom  it 
belonged.  If  was  held,  that  the  receipt  of  R.  the  guardian,  was 
no  bar  to  the  action  by  the  relators  on  the  official  bond  of  the 
clerk,  to  recover  the  money  due  to  them  and  which  the  clerk 
had  refused  to  pay.     State  v.  Arrington,  3  Ired.,  99. 

7.  A  guardian  was  appointed  in  February,  1833,  and  remained 
in  office  until  May,  1841,  during  all  which  time  he  never  renewed 
his  bends  as  required  by  law.  The  first  renewal  should  have 
been  made  in  1836,  and  the  second  in  18391;  it  was  //-A/ that  a 
clerk  of  the  court,  who  had  been  appointed  in  1837,  and  who 
issued  no  notice  to  the  guardian  to  come  forward  and  renew  his 
bond,  was  responsible  on  his  official  bond  for  any  loss  the  wards 
may  hav   sustained  by  his  neglect  .to  issue  such  notices.     State 

•  7.  7  [red.,  289. 

8.  Where  a  clerk  and  master  had  received  money  in  his  office 
under  a  decree  of  the  court,  and  used  it.  and  afterwards  paid  it 
out  to  a  person  whom  he  thougb.1  entitle, I  to  receive  it.  but  who 
in  fact  was  not   so.  it  was  held,  that  the  clerk  and  master  was 

party  properly  entitled,  not  only  for  the  principal 
receh  ed,  but  also  for  interest  thereon  to  the  time  of  the  payment 
to  such  party.     StaU  v.  Ehringhaus,  8  Ired.,  7. 

9.  A  clerk  and  master,  who  sells  land  under  an  order  of  the 
court  of  equity  for  the  purpose   of  partition,  acts  under  such 

15 


226      CLERKS  AND  CLERKS  AND  MASTERS.— III. 

order  as  an  officer  of  the  court,  and  is  liable  on  bis  official  bond 
for  any  breach  of  duty  in  hot  complying  with  the  orders  of  the 
court,  in  relation  thereto.  Therefore,  where  a  clerk  and  roaster 
sold  land  under  such  an  order,  received  the  proceeds,  and  was 
directed  by  the  court  to  pay  them  over  to  the  person  i  ]  ,>  irly 
entitled  by  law,  and  the  heirs  did  not  make  their  claim  v  nlmi 
three  years;  it  was  held  that  he  was  bound  to  pay  the  same  under 
the  act  Rev.  Stat,  ch.  76,  sec.  1,  to  the  trustee  of  the  county, 
for  which  he  was  clerk  and  master,  and  that  lor  a  default  in 
so  doing  he  and  his  sureties  were  liable  on  his  official  bond.  But, 
it  was  held  further,  that  with  regard  to  money,  of  which  the 
court  "t  equity  had  not  directed  a  disposition,  lie  was  not  liable, 
though  it  had  remained  in  his  office  unclaimed  by  the  heirs  for 
three  years.  Statet.  Gaines,  8  Ired.,  Hie.  (See  Revised  Code, 
ch.  73,  sec.  1.)  _  • 

10.  Where  a  writ  is  signed  by  a  clerk,  in  blank,  and  delivered 
by  himself  or  his  deputy  to  another  person  to  he  filled  up  and 
placed  in  the  hands  of  the  sheriff,  the  clerk  isjiahle  to  the  pen- 
alty of  $200,  under  the  net,  Rev.  Stat.,  ch.  31,  sec.  -in,  if  no 
security  for  the  costs  has  been  given,  especially  alter  the  writ 

has  been  returned 1  regularly  docketed  by  the  clerk.     Wright 

v.  Wheeler,  8  Ired.,  L84     (See  Rev.  Code,  ch.  31,  sec.   12.) 

11.  In  an  action  upon  g  statute  to  recover  a  penalty,  the  plain- 
tiff must  set  forth  in  his  declaration  every  lad  .  bicb  is  neces- 
sary to  inform  the  court  that  his  case  is  within  the  statute"; 
Therefore  in  an  acti on  under  the  act,  againsl  i  clerls  for  not  taking 
"sufficient  security"  for  the  costs,  the  declaration  i  ;:  I  rtJq 
either  that  the  clerk  took  no  security,  or  that  he  took  im         \    ; 

ity,  knowing  it  to  be  insufficient;  otherwise  a  demurrer  will 
be  sustained,  or  a  judgment  after  ferdici  be  tained  Ibid. 
(See  Rev.  Code,  ch.  31,  sees.  40  and  42.) 

12.  No  action  can  be  sustained  on  a.  hoed  given  by  a  clerk  for 

■,.!   p       irmance  of  his  duty,  ex<     i        I  there  has 

ch  damages  sustained  as  would  givi    th  right  to 

maintain  an  action  on  the  case,  againsl  the  clerl  or  the  neglec(t 
or  breach  of  his  official  duty.     Stal   v.  [., '  •  ■■,  ■    ■    loi 

13.  i(  was  ao1  the  intejition  of  the  act,  requiri  i  l<  rks  to 
issue  ex  officio  notices  to  guardians,  to  make  th  n  their 
official  bonds  for  failing  to  do  so.     Ibid.     (See  Revised  <    de,  ch'. 

!C.    10.) 

14.  Where  a  clerk  and  master  took  monej  to  his 
office,  and  used  it  in  speculation,  the  sureties  on  I  he  i  hen  current 
bond  are  liable;  notwithstanding  the  amount  thus  taken  had 
been  returned  to  him  by  the  person,  who  was  his  partner  in  the 
speculation,  after  the  time  when  that  bond  had  expired,  and  a 
new  bond  had.  been  given.  Such  a  return  of  the  money  could 
only  have  the  effect  to  mitigate  the  damages,  and  to  that  end 
it  should   have    been    shown   that   the    money   was    specifically 


CLERKS  .VXD  CLERKS  AND  MASTERS.— III.       227 

appropriated  to  the  payment  of  those  entitled  to  it.  White  v. 
Smith.  ■_'  Jones,  4. 

1").  Where  the  sureties  on  the  second  bond,  in  the  case  just 
above  stated,  were  sued,  and  a  judgmenl  was  erroneously  ren- 
dered against  them,  which,  upon  being  paid,  wasassigned  to  a 
friend  lor  their  use,  if  was  heM,  that  the  judgment  was  no  bar 
to  the  suit  on  the  bond,  the  sureties  to  which  were  properly  lia- 
ble, and  that  it  could  not  even  have  the  eftect  of  mitigating  the 
damages.     Ibid. 

16.  Where  a  clerk  and  master  misapplied  a  fund,  of  which  a 
husband  was  entitled  to  the  annual  interest  during  his  life,  and 
the  w  i  te  was  similarly  entitled  during  her  life,  in  case  of  her  sur- 
viving her  husband,  it  was  held,  that  the  husband  and  wife 
could  reqpver  on  the  official  bond  of  the  said  clerk  and  master, 
for  the  current  year  at  the  dale  of  the  misapplication,  to  the  ex- 
tent of  the  interest.     Richardson  v.  Smith,  2  Jones,  8. 

17.  Where  the  money  and  property  of  an  infant,  without  a 
guardian,  was  ordered  bya  decree  of  the  county  court,  to  be  paid 
ever  to  the  clerk  of  the  court,  to  be  by  him  invested  and  man- 
aged under  the  direction  of  the  court  for  the  benefit  of  the  in- 
Cant,  it  was  held,  that  such  clerk  and  his  sureties  were  liable  on 
hisofficial  1  ond,  which  was  in  force  at  the  time  of  the  decree, 
without  reference  to  the  time  when  the  money  and  property  was 
afterwards  received.  Lathamv.  Fayan,  6  Jones,  62.  (See  Rev. 
Code.  eh.  I  !,  sec.  29.) 

is.  An  official  bond  given  by  a  clerk,  upon  his  entry  into  of- 
fice, covers  his  whole  official  term,  whether  a  new  bond  I" 
wards  given  or  not.     Hunter  v.  Routlegi .  6  Jones,  216. 

19.  The  forfeiture,  declared  by  the  11th  section  of  the  19th 
chapter  of  the  Rev.  Stal  riol  per  se  vacate  the  office  of 

e!e  i  .  uor  invalidate  the  acts  of  the  officer,  who  remains  in  office 
until  there  ;s  judgment  oi  a  scurt  -asiast  hunter  b.;s  cldxn- 
quency.     Ibid.     (See  Rev.  Code,  ch.  19,  see.  12.) 

2  I.  V'i  b  '  I  of  a  clerk,  required  bytrie  Rev.  Stat.,  ch.  28,  sec. 
11,  was  only  intended  to  secure  I  lie  payment  of  tax  fei  3  on  suits, 
lines    tfce.,  while  tl  ev.  Stat.,  ch.  19,  >•  c.  7. 

v  1  i  .ended  iii  si  ir  e  payment  of  money  generally  to  the 
parson  <  if  the  ] 

wlere  money  rais  id  under  an  execution  was  paid  into 
office,  it  was  held,   thai   il   could  tiol    be   recovered  upon  a  bond 
given  under  the  fir  1  named  act,  all  hough  thai  conl  tin    ;  a  conr 
jlition,  "to  pay  ever  to  the  person  1  r  pi  rsons  entitled  b   re  :eive 
the  sain  r  monies,  which   might  come  to  his  hands  by 

virtue  of  his  office.  Ibid.  (Only  one  bond,  in  a  pi  ..'  oi 
$15,000,  is  now  required  from  a  clerk,  which  coi  a  allhis  lia- 
bilities.    See  Rev.  Code,  ch.  19,  see.  8.) 

21.   No  demand  is  necessary  previous  to  a  suit  against  a  clerk, 


22*    (LEEKS  AXD  CLERKS  AND  MASTERS.— IEL-IV. 

who  has  received  public  money,  offieially,  which  he  is  bound  to 
pay  over.     Little  x.  Richardson,  6  Jones,  305. 

22.  An  order  made  in  the  superior  court  for  an  outgoing 
clerk  to  deliver  documents,  records,  papers  and  money  to  the 
new  clerk,  under  the  Eev.  Code,  ch.  19;  sec.  14,  cannot  be  en- 
forced by  a  motion  for  a  judgment  in  the  county  couft  The 
remedy  is  by  an  attachment,  in  the  court  making-  tie-  order,  or 
by  a  regular  suit  for  the  penalty  of  $1,000  given  by  the  act. 
O'Leary  v.  Harrison,  i>  -Tones.  33& 

23.  it  was  not-  the  intention  of  the  legislature  in  the  act,  Rev. 
Code,  ch.  54.  Bee.  6,  t<>  make  it  a  breach  of  the  clerk's  official 
bond,  to  omit  entering  the  name.-?  of  the  justices  present  in  court 
and  appointing  a  guardian,  either  on  the  docket,  or  bond,  or  both; 
but  in  these  particulars  the  act  is  merely  directory.  ForneU  v. 
Kooni  e,  6  J<  mes,  379. 

•IX.  Where  money  was  paid  to  the  deputy  of  a  cleric  and  mas- 
ter after  tlie-  term  of  office  of  the  principal  had  expired,  although 
he  was  still  acting,  without  having  been  re-appointed  or  given  a 
new  bond,  it  was  held  that  a  msa-payment  of  this  money,  to  the 
entitled  under  an  order  of  the  court,  was  no  breach  of 
the  official  bond  given  by  the  principal  during  his  term  of  office. 
HdUoman  v.  Langdon,  7  Jones,  49. 

25.  The  only  remedy  given  by  the  act  ef  assembly  to  a  per- 
son against  a  clerk,  who  has  issued  a  writ  against  him,  without 
ng  security  to  the  prosecution  bond,  is  the  penalty  of  two 
bundled  dollars,  given   by  the  Rev.  Code,  ch.  31,  sec.  42.     Fife 
v.  Lander,  7  Jones*  247. 

2ii.  Inaction  by  the  county  trustee  suing  upon  a  sheriff's  official 
bond.,  as  relator  in  the  name  e>f  the  State,  is  within  the  meaning 
i,i'  tiii  act,  Rev.  Code,  ch.  31.  sec.  40.  requiring  clerks  to  take 
prosecution  bonds  before  issuing  leading  process;  ami  a  clerk, 
failing  t: )  take  such  bond  in  such  suit,  is  liable  to  the  penalty 
of  twe  hundred  dollars,  imposed  by  the  42nd  section  of  the 
same  act.     King  v.  Woolen,  7  Jones,  533. 

27.  A  summary  remedy  by  motion  is  given,  against  a  clerk 
and  his  sureties  on  his  official  bond,  for  money  which  lias  re- 
mained in  his  hands  for  three  years,  only  where  he  has  admitted 
the  money  to  be  due,  in  the  manner  specified  in  the  1st  section 
ot  th'/  73d  chapti  :  I  Code.     Summey  v.  ./, 

1  Wins!,  '.is. 

See  (Limitations — Of  actions  on  official  bonds,  S.)  -(Trespass — 
-ens  and;  ;  ony,  when  it  will  lie,  13.) 

IV.   DEEDS  EXECUTED  3Y  CLERKS  AXD  MASTERS. 

1.  A  deed  for  land  a   clerk  and  master,  by  an 

order  of  court,  under  the  act,  Rev.  Stat,  ch  32,  sec.  is.  conveys 
all  the  interest  any  of  s.te  the   suit  had  in.  the  land, 


COLOR  OF  TITLE.  22<d 

although  another  person  may  be  in  possession,  claiming  adverse- 
ly. Williams  v.  Bennett,  4  Ired.,  122.  (See  Rev.  Code,  ch.  32, 
sec.  23.) 

2.  A  bidder,  at  a  sale  by  a  clerk  and  master,  may  assign  bis  1  dd, 
and  the  deed  of  the  clerk  and  master  to  the  assignee  will  pass 
the  title.     GampbeU  v.  Baker,  6  Jones,  255. 

3.  A  decree  of  sale,  upon  the  petition  of  infants  by  their  next 
friend,  is  valid ;  and  where  a  married  woman  and  her  children, 
for  whom  an  estate  had  been  conveyed  to  a  trustee,  joined  with 
the  trustee  in  a  petition  for  a  sale  of  the  real  estate,  with  a  view 
to  a  re-investment,  and  the  decree  was  that  the  clerk  and  master 
should  make  the  sale,  it  was  held,  that  whether  or  not  the  title 
of  the  trustee  could  be  thus  passed  out  of  him,  before  the  act  of 
1836,  (see  Rev.  Code,  ch.  32,  sec.  23,)  it  would,  at  .all  events, 
pass  out  of  him  by  force  of  that  act.     Hid. 


COLOR  OF  TITLE. 

1.  The  act  of  limitations  concerning  lambs  was  made  with  the 
intention,  that  where  a  man  settled  upon  and  improved  lands 
upon  the  supposition  that  they  were  his  own,  and  continued  in 
the  occupation  for  seven  years,  he  should  not  be  turned  out  of 
possession;  hence  arose  the  necessity  for  color  of  title,  for  if  he 
had  no  such  color  or  pretence  of  title,  he  could  not  have  sup- 
posed the  lands  were  his  own,  and  he  settled  upon  them  in  his 
own  wrong.  Grant  v.  Winbourne,  2  Hay.,  56,  (220.)  S.  P., 
Armour  v.  White.     Ibid,  69,  (236)  and  87, '( 257. ) 

2.  The  deed  of  a  wife  and  her  husband,  to  which  she  has  not 
been  privily  examined,  is  a  color  of  title.  Pearse  v.  Oioens,  2 
Hay.,  231,  (115.) 

3.  A  devise  is  color  of  title.  Emus  v.  Satterfield,  1  Murph., 
413.     S.  P.,  University  v.  Blount,  N.  C.  Term,  Rep.   13,  (415.) 

4.  A  conveyance  by  one  purporting  to  be  under  a  power  of 
attorney  from  another,  although  he  was  not  thus  empowered, 
is  < .  lor  of  title.  When  a  deed  is  executed,  which  is  afterwards 
coasidered  as  forming  only  color  of  title,  the  party  executing  it 
must  be  considered  as  not  having  a  complete  title  in  the  land, 
which  he  by  his  deed  purports  to  convey.  Hill  v.  Wilton,  2 
M«fph,  14. 

5.  Where  both  parties  claim  by  descent  from  the  same  com- 
mon ancestor,  a  color  of  title  by  virtue  of  such  descent  cannot 
be  sot  up  by  one  against  tin;  other,,  whatever  may  be  the  effect 


230  COLOR  OF  TITLE. 

of  a  descent  in  any  other  case.     Midford  v.  Hardison,  3  Murph.. 
164. 

6.  The  possession  of  lands  for  seven  years,  under  color  of  title, 
bars  the  entry,  although  the  possessor  knew  at  the  time  he 
obtained  his  color  of  title  and  took  possession,  that  the  lands 
belonged  to  another  person.     Ueddick  v.  Leggett,  3  Murph.,  539. 

7.  A  sheriff's  deed,  which  recites  the  execution  under  which 
the  land  in  dispute  was  sold,  as  having  been  tested  and  signed 
by  the  deputy  clerk,  is  color  of  title.  Jones  v.  Putney,  3  Murph., 
562. 

8.  An  unregistered  deed  is  color  of  title.  Campbell  v.  Mc- 
Arthtr.  2  Hawks,  33. 

9.  An  act  of  the  legislature,  though  unconstitutional,  is 
good  color  of  title.  Episcopal  Church  v.  Newlern  Academy,  - 
Hawks,  233. 

10.  An  allotment  of  dower  made  to  a  widow,  without  previous 
notice  to  the  infant  heir,  is  color  of  title  and,  with  seven  years, 
possession  under  it.  gives  a  good  title  against  a  stranger, 
although  the  allotment  might  have  been  reversed  or  set  aside 
by  the  heir,  or  those  claiming  under  him.  Rayner  v.  Capehartt 
2' Hawks,  375. 

11.  Color  of  title  may  be  defined  to  be  a  writing,  upon  its  face 
professing  to  pass  title,  but  which  dues  not  do  it,  either  from  a 
want  of  title  in  the  person  making  it,  or  the  defective  mode  of 
conveyance  employed;  and  it  would  seem,  that,  at  least,  under 
the  act  of  1791,  it  must  not  be  so  obviously,  defective,  that  no  man 
of  ordinary  capacity  could  be  misled  by  it.  Tate  v.  Southard,  3 
Hawks,  119. 

12.  Until  the  right  of  entry  of  a  creditor  acmes,  a  fraudulent 
deed  is  void  to  all  purposes  as  against  him,  whether  offered  as 
title  or  as  color  of  title.  But  it'  after  a  sale  by  the  creditor  the 
possession  oi  the  fraudulent  vendee  be  adverse  to  the  purchase]', 
his  fraudulent  deed  then  becomes  color  of  title,  and  may  be 
perfected  by  subsequent  possession.  Picket  v.  Picket,  3  Dev.  6. 
S.  P.,  Hoke  v.  Henderson.     Ibia\  12. 

13.  Where  A  purchases  under  an  execution  against  B,  takes  a 
deed,  and  on  the  same  day  conveys  to  B,  though  the  purchase 
and  conveyance  be  at  the  request  of  B,  and  merely  to  give  him 
a  color  of  title,  without  any  money  paid  or  received,  the  con- 
veyance to  B  is  a  sufficiently  colorable  title  within  the  statmte 
of  limitation.     Rogers  v.  Mabe,  4  Dev.,  180. 

14.  It  seems  that  a  sheriff's  deed  gives,  by  relation,  a  color  of 
title  from  the  sale.     Ibid. 

15.  Color  of  title  depends,  not  on  the  purpose  of  taking  a 
deed,  but  on  its  apparently  conferring  an  estate  on  the  possessor 
of  land.     Ibid. 

16.  To  constitute  color  of  title,  there  must  be  some  written 
etoi  niic-ut  Df  title,  professing  to  pass  the  land,  which  is  not  so 


COLOR  OF  TITLE..  231 

obviously  defective,  that  it  could  not  have  misled  a  man  of  ordi- 
nary capacity.  Hence  a  sheriff's  return  of  a  sale  upon  &Ji,  fa. 
is  not  a  color  of  title,  for  that  is  not  understood  by  any  man  of 
ordinary  capacity  as  passing  or  professing  to  pass  title.  Dobson 
v.  Mi  rphy,  1  Dev.  and  Bat,  586. 

17.  A  dei  I  for  the  whole  land,  made  by  one  tenant  in  common 
to  a  third  person,  is  eolor  of  title,  under  which  a  possession  by 
the  purchaser  for  a  sufficient  length  of . time  would  divesl  tin 
title  of  the  co-tenant.     Rossv.  Durham,  I  Dev.  and  Bat.,  •">4. 

18.  A  partition  of  land,  mad'  by  order  ofcourl  upon  the  peti- 
tion of  1  i  interested,  is  a  good  color  of  title.  Bynumv. 
Thonij  so  •  3  Ired.,  57S. 

19.  A  paper  writing-  purporting  to  be  a  will  of  lands,  which 
has  but  one  subscribing'  witness,  and  which  lias  never  been 
provi  d  as  a  will,  is  not  such  a  color  of  title  as  will  ripena  seven 

sion  under  it  into  a  good  title      CaRend-ir  v.  Sher- 
'  I  red.,  711. 

20.  A  devise  to  one  person  cannot  be  color  of  title  to  another, 
claiming  adverselv  to  the  devise.-.  Watkins  v.  Flora.  8  lred.. 
374. 

21.  Where  a  deed  was  delivered  merely  as  an  escrow,  and 
never  absolutely,  was  not  registered  and  was  finally  destroyed 
by  the  maker,  by  the  consent  of  the  party  to  whom  it  purported 
1n  be  mad  .  it  cannot  constitute-  a  color  of  title.  Chastienv. 
Phillips,    11  lred..  255. 

~1'1.  If  the  sheriff  sell  thelandofA  for  taxes,  and  make  a  deed 
to  the  purchaser,  which  is  inoperative,  the  deed  from  A's  vendor 
to  him  would  be  good  color  of  title  in  A;  but  it  the  sheriff's 
deed  be  operative  and  pass  title,  then  the  deed  of  A's  vendor 
could  not  be  set  up  by  A  as  color  of  title  against  the  purchaser 
from  the  sheriff.     Everett  v.  Smith,  Busb.,  303. 

23.  An  ordinance  of  a  town,  not  under  the  seal  of  the  corpo- 
ration, noi  expressing  a  consideration,  and  not  delivered  to  the 
parties  claiming  under  it,  cannot  amounl  to  a  conveyance  of 
real  i  e,  and  is  not  even  color  of  title.  Commissioners  of 
l;,,i  fort  v.  Duncan,  1  denes.  239. 

24.  J  he  e,,py  of  a  script  purporting  to  be  a  will,  taken  from 
the  book  of  the  record  of  wills  in  a  county,  but  of  which  there 
is  no  evidence  that  it  has  ever  been  proved  as  a  will,  is  of  no 
avail  even  as  color  title.     Sntton  v.   Wescott,  3  Jones,  283. 

25.  A  deed  made  by  a  clerk  and  master  in  equity  after  he 
goes  oul  "i  office,  upon  a  sale  made  by  him  while  in  office,  is 
color  of  title,  though  it  may  not  be  otherwise- operative.  Wil- 
liams v.  t ' ..  ir'i.  \  Jones,  20G. 

•2<i.  \\  here  the  bargainor,  in  a  deed  for  land,  remained  in  pos- 
session without  any  understanding  with,  or  permission  from  the 
bargainee,  ami  while  thus  in  possession  executes  another  deed 
to  another  bargainee  whaentered  under  it.  and  held,  the  laud  for 


232  COMMISSIONERS  FOR  PERFORMING  PUBLIC  DUTY. 

seven  years,  it  was  held,  that  the  second  deed  was  good  color  of 
title,  and  that  the  seven  years  possession  under  it  gave  the  bar- 
gainee a  good  title  against  the  first  bargainee.  Reynolds  v. 
Cathens,  5  denes.  437. 

27.  An  unregistered  deed  is  a  color  of  title,  under  which  a 
possession  for  seven  years  will  liar  the  entry  of  the  owner. 
Hardin  v.  Barrett,  i>  denes,  159. 

28.  A  deed  cannot  operate  as  -color  of  title,  so  as  to  have  effect 
beyond  the  estate  which  it  professesto  pass.  McRae  v.  Williams, 
7  dunes,  430. 

29.  A  grant  from  the  State,  purporting  to  be  made  in  obedi- 
ence to  acts  of  the  general  assembly,  providing  for  the  relief  of 
persons  whose  title  deeds  had  been  destroyed  by  the  burning  of 
the  courthouses,  &c,  of  the  counties  of  Hertford  and  Montgo- 
mery, is  color  of  title.     Krorl  v.  Hinson,  S  Jones,  347. 


COMMISSIONERS    FOR    PERFORMING 
A  PUBLIC    DUTY. 

1.  Where  a  public  act  is  to  bo  done  by  commissioners  appoint- 
ed for  that  purpose,  and  they,  or  so  many  of  them  as  by  the  terms 
of  their  appointment  are  required  to  act.  do  meet  and  confer, 
and  a  determination  is  made  upon  the  subject  by  a  majority  of 
them,  the  majority  will  conclude  the  minority,  and  their  act  will 
be  the  act  of  the  whole;  and  after  a  decision  once  mail,  the 
commissioners  have  nothing  further  to  do.      They  axe  fundi  of- 

Jifin,  and  cannot  afterwards  meet  to  annul  or  vary  the  act  which 
they  have  done.     State  v.  King,  4  Dev.  and  Bat.,  521. 

2.  Where  certain  commissioners,  appointed  to  act  on  behalf  of 
the  public,  in  making  a  purchase  or  accepting  a  donation  of 
land,  accept  a  proposition  for  a  gift  of  a  piece  of  land,  to  be 
laid  off  in  either  of  two  ways  at  flic  option  of  the  commissioners, 
and  a  part  of  them  are  authorized  by  the  whole,  to  lay  off  the 
land  without  specifying  in  which  way,  the  act  of  the  minority  in 
laying  off  the  land  will  net  he  valid  without  the  assent  of  the 
majority;  though  if  the  proposition  had  not  been  in  the  alterna- 
tive, the  act  of  laying  offthe  land  might  have  been  performed 
by  any  one  or  more  of  the  commissioners,  or  by  any  agenl  or  at- 
torney, provided  that  the  act  was  done  in  conformity  to  the 
terms  of  the  proposition.     I  bid. 

3.  A  proposition  to  give  a  certain  quantity  of  land  for  tho  use 


COMMON  CAEEIER— COMMON  SCHOOLS.         233 

of  the  public,  to  be  laid  off  twenty  poles  on  each  side  of  a  cer- 
tain lane,  commencing  at  a  designated  line  and  running  thence 
to  a  particular  river,  is  complied  with  by  a  donation  of  land  laid 
off  in  the  form  of  a  parallelogram  with  the  lane  in  the  middle, 
and  extending  to  the  river,  though  it  may  not  have  the  river 
for  the  whole  boundary  on  that  side.     Ibid. 

4.  "Where  an  .act  ©If  assembly,  in  one  section  directs  a  site  to 
be  selected  for  a  towa  in  a  newly  erected  county,  and  in  a  sub- 
sequent section  enacts  that  the  county  court  of  the  comity,  "at 
its  first  session,"  shall  appoint  commissioners  to  sell  the  lots  in 
the  said  town,  the  first 'court  which  sits  after  the  site  is  selected, 
ami  not  the  first  court  after  the  enactment,  is  the  one  vested 
with  authority  to  make  the  appointment,  ami  if  an  appointment 
be  made  before  the  selection  of  the  site,  it  will  lie  premature  and 
revocable  at  least,  if  not  absolutely  void.     Ibid. 

5.  Where  commissioners  are  appointed  by  an  act  of  assembly, 
tn  "select.and  determine  a  site  for  the  permanent  seat  of  jus- 
tice "  in  a  county,  and  are  directed  when  they  have  selected  a 
site,  tn  give  notice  to  another  set  of  commissioners  appointed  by 
the  same  act  for  the  purpose  of  acquiring  a  title  to  the  land  so 
selected,  tke  commissioners  for  location  may  make  a  c  mditional 
selection,  and  if  the  condition  be  not  complied  with  by  the 
■owner  of  the  land  selected  as  the  site,  they  may  make  a  new 
..selection.     Herbert  v.  Sanderson,  1  Winst,,  282. 


COMMON    CARRIER 

See  (Carrier.) 

COMMON    SCHOOLS. 

1.  Although  the  chairman  of  the  board  of  superintendents  of 
common  schools  may  nut  have  been  appointed  on  the  day  pre- 
scribi  i  by  the  statute,  and  although  the  Dond  he  gives  may  not 
luivi-  been  directed  by  the  county  court,  yet  if  he  accept  and  act 
under  (the  appointment,  he  and  bis  sureties  are  bound  by  the 
bond,  as  a  common  law  bond.     States.  Perkins,  LO  Ired.,  333. 

2.  By  the'  act  of  1844,  a  right  of  action  accrues  to  tin-  chair- 
man   of  the.    board   of  superintendents   of    common    schools, 


234  COMMON  SCHOOLS. 

against  the  sheriff  for  failing  to  pay  over  the  school  tax  on  the 
1st  day  of  November,  in  each  and  every  year;  and  if  the  chair- 
man neglect  to  bring  such  action  at  that  time,  he  is  himself  lia- 
ble to  an  action  on  his  official  bond.  Stcdev.  Lindsay,  Busb..  323; 
(SeeEe\.  Code,  eh  S6,  sees  29  ami  32>) 

3.  Under  the  act  of  1844,  ch.  36,  regulating  common  sch  ioIs, 
a  scholar,  regularly  attending  a  common  school,  was  not  bound 
tj>  work  mi  a  public  road,  during  a  holiday  occurring  within  the 
period  of  the  session,  that  is,  during  the  time  for  which  the 
beacher  was  employed  under  the  13th  section  of  the  same  ac1 
Estes  v.  Oxford,  4  Jones,  474. 

4.  A  school  committee  undes  the  act  regulating  common 
schools.  Rev.  Code,eh  66,  have  na  authority  to  employ  a  teacher 
fir  a  period  i  beyond  the  time  when  their  term  of  office 
expires.     Taylor  v.  School  Committee,  5  Jones,  98. 

;">.  Whether  a  judgment  in  the  ordinary  form  can  betaken 
against  a  school  committee  for  a  teacher's  wages,  and  whether 
the  remedyis  not  by  mandamus,  quaere.    Ibid. 

6.  The  act  of  1854,  Rev.  Code,  ch.  66,  on  the  subject  of  com- 
mon schools,  did  not  repeal  the  provisions  of  the  acts  of  1844  and 
1848,  prescribing  the  appointment  of  a  chairman  of  the  hoard 
of  superintendents,  and  the  tenure  and  extent  of  his  office.  It 
was  held,  therefore,  that  where  a  chairman  gave  his  bond  in 
1855  and  continue, 1  in  office  without  any  new  appointment  until 
April  1857,  when  a  successor  was  appointed,  he  and  his  sureties 
were  liable  on  such  bond  for  an  unexpended  balance  of  school 
money  iu  his  hands  in  1857.  Chairman  of  Common  Schools  v. 
Daniel,  6  Jones.  411.     S.  P.,  Sftuggs  v.  Stone",  7  Jones,  382. 

7.  Where  a  person  was  a  superintendent  of  common  schools 
for  several  consecutive  years,  giving  bond  for  each  year,  and 
then  gave  a  bond  lor  the  year  1853,  it  was  held,  that  all  the 
amount  that  had  come  to  his  hands  that  could  not.  lie  shown 
to  have  been  misapplied  or  wasted  in  the  previous  years,  was 
recoverable  on  the  last  bond.      Ibid. 

8.  When  a  chairman  of  the  board  <<\'  superintendents  of  com- 
mon schools,  mi  going  out  of  office,  gave  his  own  note  instead 
of  the  money  in  his  hands  to  his  successor,  and  upon  being  re- 
appointed after  a  lapse  of  two  years,  received  the  same  note  back 
as  a  part  of  the  school  fund  and  gave  a  release  in  full  to  his  pre- 
decessor, it  was  held,  that,  on  his  subsequent  inability  ami  fail- 
ure to  pay  such  note,  he  and  the  sureties  to  his  bond  given  on 
his  last  re-appointment  were  liable  for  it.  Cooper  v.  Cherry,  8 
Jones.  223. 

See  (sheriff — Of  the  liability  of  sheriffs  and  their  sureties. 
60. ) 


COMPROMISE,  &c,  &c. 


COMPROMISE. 

1.  'Wli'i'''  one  party  offers  to  pay  or  give  the  other  a  certain 
sum  by  way  of  compromise,  and  the  offer  is  rejected,  it  is  in  no 
way  obligatory.  Nor  is  it  an  admission  of  the  tad  that  tin'  de- 
fendant owed  the  sum  offered.  When  a  proposition  of  that  kind 
is  rejected,  the  rights  of  the  parties  remain  precisely  as  they 
were  before  it  was  made.  Poteat  v.  Badgetr4  Dev.  ami  Bat., 
208. 

2.  An  offer  to  compromise  is  not  evidence  to  charge  the  party 
on -the  original  cause  of  action;  but  a  concluded  agreement  of 
compromise  must,  in  its  nature,  be  as  obligatory,  in  all  respects. 
as  any  other,  and  either  party  may  use  it,  whenever  its  stipula- 
tions "i-  statements  of  tacts  become  material  evidence  for  him. 
Sutton  v.  Robeson,  9  Ired.,  380 

3.  A  court  cannot  strike  out  an  entry  of  a  compromise  in  a 
suit  ami  order  it  for  trial,  because  it  has  been  imperfectly  enters 
ed,  or  has  nut  been  performed.  The  proper  course  is  to  order 
an  amendment  nunc  pro  tunc  so  as  to  make  the'  record  speak  the 
truth,  and  then  to  enforce  tin;  performance  of  the  compromise, 
thus  properly  entered,  by  attachment  or  other  means  usual  in 
such  eases.     Cox  v.  Cox,  8  Jones,  487. 


CONCEALING  THE  BIRTH  OF  A  BAS- 
TARD CHILD. 

See  (Indictment — In  what   cases  an   indictment  will  lie.  22.) 
(Bastardy— Concealing  the  birth  of  a  bastard  child.) 


CONDITION. 

1.  A  condition  or  limitation,  annexed  to  an  estate,  destroys  the 
whole  of  the  estate  to  which  it  is  annexed,  and  not  a  juni.  only. 
Bennett  v.   Williamson,  1  Dev.  and  Hat.,  282. 

2.  An  estate  once  vested  cannot  be  defeated  by  a  condition  or 
forfeiture,  without  some  act  on  the  part  of  the  grantor  or  his 
heirs,  by  which  to  take  advantage  of  the  condition  or  forfi  iture, 


236  CONFESSIONS— CONFISCATIONS. 

even  though  the  words  of  the  condition  be  "the  estate  shall 
thereupon  be  void  and  of  no  effect,"  which  words  have  the  same 
legal  import  as  the  words  "ipso  facto  void."  Phelps  v.  Ghesson, 
5,2  I  red,  194. 

3.  One  who  prevents  the  performance  of  a  condition,  or  makes 
it  impossible  by  his  own  act  to  be  performed,  shall  not  take  ad- 
vantage of  the  non-performance.  Cape  Fear  and  Deep  Hirer 
Navigation  Company  v.  Wilcox,  7  Junes,  481. 

4.  A  treaty  is  in  its  effect  an  executor}"  agreement,  and  where 
an  estate  was  limited  by  treaty  to  one  for  life,  with  a  remainder 
in  fee  to  his  children,  on  a  condition  extending  to  both  estates, 
it  iveis  held  that,  on  breach  of  such  condition,  both  estates  were 
defeated  ipso  facto  without  entry.  Welch  v.  Trotter,  8  Jones, 
197. 

See  (Bond — Of  the  construction  of  bonds  and  the  condition.) 


CONFESSIONS. 

See  (Evidence — In  criminal  proceedings  and  Indictments — 2 
4-5-8-15-17-32-33-34-51-64-68-87-101-104-105-114-122-124 

128-129.)    (Evidence — Admissions,  declarations  and  acts  of  par- 
ties, privies  and  others.) 


CONFISCATION. 

1.  An  act  of  assembly,  passed  during  a  Mar  and  confiscating 
the  property  of  an  alien  enemy  by  name,  is  at  least  as  effectual 
in  vesting  the  property  in  the  State,  as  any  office  found  according 
to  the  practice  in  England   Bayard  w..  Singleton,  1  Mar..  48,  (42.) 

2.  The  confiscation  actsrso  Ear  as  they  interfere  with  the  treaty 
of  peace  with  Great  Britain,  were  annulled  by  the  treaty.  Ham- 
ilton v.  Eaton,  -2  Mar.,  1,  (83.) 

3.  All  lands,  the  legal  title  to  which  remainedin  Henry  Eus- 
tace Mc<  'ulloeh,  on  the  4th  July,  1776,  were  confiscated,  and  the 
legal  titile  thereof  vested  in  the  State.     Cunningham  v.  . 
Conf.  Eep.,  77,  (210.) 

4.  The  proviso,  to  the  6th  section  of  the  confiscation  law  of 
1779,  diil  not  vest  any  title  in  the  wife  and  children  of  the  absen- 
tees.    Faris  v.  Simpson,  Conf.  Rep,,  178,  (294.) 


CONFISCATION.— CONSCIPTION.  237 

5.  Under  the  confiscation  law  of  177il  titles  were  not  divested 
out  of  the  persons  coming  within  its  operation,  without  proa  l- 
ings  in  the  nature  of  an  office  found.  But  by  the  second  confis-j 
cation  act  of  1779,  the  estates  of  the  persons  named  therein 
were  divested  by  force  of  the  act  itself.     Ibid. 

6.  When  confiscated  lands  were  sold  by  the-  State,  and  the 
Contract  was  relinquished  and  the  lands  surrendered  to  the  State 
before  the  year  179-4,  the  lauds  passed  to  the  University  by 
the  act  of- that  year.  HugJues  v.  The  University,  Conf.  Rep*, 
370.  (446.) 

7.  Where  a  deed  in  trust  of  land  was  made  to  a  linn  consist- 
ing of  several  partners,  all  of  whom  except  one  afterwards 
became  subjed  to  the  confiscation  laws,  U  was  held  that  this  one 
was  ad-  uate  and  competent  to  hold  the  land  and  execute  the 
trust,      University  v.  Bice,  ('nil'.  Rep.,  497,  (">47.) 

8.  The  confiseation  acts  of  1777,  1779  and  1789,  applied  to 
lands  conveyed  ly  one  alien  enemy  to  another,  but  not  to  lands 
conveyed  by  an  alien  enemy  to  a  citizen,  before  the  acts  were 
passed.     Gam/pbeU  v.  McArthur,  N.  C.  Term  R.,  115,  (552..) 

9.  Under  the  eonfiscation  laws  of  the  State,  the  county  court 
had  nei  authority,  in  the  absence  of  commissioners,  or  other' 
officers  appointed  bylaw  for  that  purpose,  to  seize,  condemn  and 
sell  the  property  of  any  tory  of  the  revolution,  then  dead, 
without  notice  to  his  heirs.     McPhaulv.  QUckrist,  7  Ired.,  L69. 

See  (Constitution — Acts  which  have  been  declared,  uncon- 
stitutional. 1.) 


CONSCRIPTION. 

1.  A  person  liable  ts  military  service  as  a  conscript,  under  the 
act  of  t lie  Confederate  Congress  of  April,  1862,  and  who,  by 
virtue  of  the  9th  section  of  that  act.  regularly  procured  a  dis- 
charge by  furnishing  a  proper  substil  te,  cannot  again  be 
enrolL  d  a  a  conscript  under  the  act  of  September,  1862.  In  the 
matt      ,'       yan,  1  \\  inst.,  1. 

■J.  Pi  .-  one  who  ha:!  been  "placed  in  the  military  service  of  the 
Cunt'-  hi  the  field,"under  the  conscription  aci  of  1862, 

and  were  in  such  serviceat  thetimeofthepassage  of1  be  exemption 
act  of  <  Ictober,  l^o'j.  were  held  not  to  be  entitled  to  exemption 
asrneeh  -  erthatact.    Inthe  matter  of  Gruyerrl  Winst.,  66. 

3.  But  where  :  lacksmith,  after  being  enrolled,  was,  at  the 
time  of  the  ,  age  of  the  exemption  act,  not  placed  in  the 
service  in  .hi'  field,  but  was  detailed  to  work  on  a  government 
jontract,  am!  did  so  work  at  his  trade,  at  accustomed  wages,  not 


238  CONSCRIPTION, . 

having  received  any  bounty,  pay,  rations  or  clothing,  up  to  that 
time,  //  was  held  that  he  was  entitled  to  exemption.     Ibid. 

4.  The  act  requires  that  the  trade,  on  which  the  claim  of -a 
mechanic  to  exemption  is  founded,  shall  be  his  regular  occu- 
pation and  employment,  not  that  at  which  he  may  work  occa- 
sionally  and  at  odd  times.  In  the  mutter  of  Grantham,  1 
Winst.,  73. 

5.  A  schoolmaster,  whose  occupation  had  been  suspended  for* 
twelve  or  eighteen  months  of  the  time  required  '■'■•!■  the  previous 
pursuit  of  his  business,  is  not  entitled  to  exemption,  under  the 
art  of  October  1862.     In  the  matter  of  DolMite,  I  Winst,  74. 

C>.  A  person  who  had  been  drafted,  and  who  had  put  hi  a  sub- 
stitute that  was  accepted  by  the  officer  appointed  to  conduct 
that  business,  iuas  held  not  to  be  liable  to  conscription  under  the 
act  of  September  1862.     In  tin:  mutter  of  Hitter,  1  Winst..  7(i. 

7.  The  circular  of  the  War  Dapartment,  dated  20th  October, 

1861,  allowing  substitutes  to  be  received  after  the  companies 
were  formed  and  actually  in  the  service,  Was  held  to  apply  by  a 
liberal  construction  to  companies  while  in  the  process  of  being 
recruited  and  organized,  and  when  a  substitute  was  received 
under  the  latter  circumstances,  several  of  the  formalities  re- 
quired for  obtaining  a  discharge  were  held  to  be  immaterial. 
Ibid. 

8.  In  the  conscript-ion  of  principals,  under  lee  acts  of  the  5th 
of  January  and  17th  of  February  1864,  it  a  c<  itra  svere  made 
],ei  ween  the  government  and  the  eonscripl  by  the  hlter  furnish; 
ing  a  substitute  under   tl  e  9th  Si  <  tion    of  the  act  of  loth  April, 

1862,  th< ument   has  a  right  to  annul   the   contract,  by 

virtue  of  the  power  inherent  in  ail  governments,  whosi  organic 
law  does  not  expresslj  deny  to  them  thatpower.  ■•  •  'u,  v.  Hal- 
tun,  1  "We 

it.  But  ii  seems  that  no  contr  cL   I  .eminent 

with  the  conscript  who  furnished  a  substitute       Ibid. 

lu.  A  subsl  itute  who  had  ne"s  er  been  liable  to  c  in  nription, 
having  been  above  the  age  of  ft  ar     /hen  he  became  a  sub- 

stitute, is  not  discharged  from  the  service  by  the  consi  ription  of 
his  principal,  under  the  act  of  Congress  of  the  ,">  h  of  January, 
1864.     McBaniel  f.  Trull,  1  Winst,  I. 

11.  A  conscript  between  the  ages  of  forty-fi  fifty,  en> 
rolled  under  the  act  of  17th  February,  1864,  .;  I  to  his 
discharge  when  hi  becom  th  ageof'fifb  slcr  v.  B raw- 
ley,  2  Winst.,  4. 

12.  The  Congress  of  the  Confederate  States  hai  no  power  to 
-■onseript  an  officer  of  the  Siate.  Hence  apblici  nanoi  anini  or- 
porated  town  is,  as  an  office]  of  the  Mate,  exempt  from  conscrip- 
tion, when  the  legislature  of  the  State  has  declared  that  the 
,ii;r,  or  and  police  of  such  town  shall  be  exempt,  because  of  their 


I  I  INSCRIPTION,  239 

ary  in  the  administration  of  its  government.     John' 
mialh  ft,  2  Winst,,  10. 

13.  Thi  constitution  and  laws  of  the  State  determine,  conclii^ 
sively  and  exclusively,  what  officers  are  necessary  for  the 
administration  of  its  government.     Ibid 

14  Co      i     3  has  no  power  to  make  the  certificate  of  1  ie  gov 
ernor  nei  i  -  ary  to  the  exemption  of  a  State  officer,  and  unless 
so  m:  State  legislature,   such  certificate  is  unneces- 

sary. 

L5.  A  man,  who  has  been  enrolled  a  a  cons  ipt,  becomes 
thereby  a  soldier  in  the  army  of  the  Confederal  and  his 

appointment  afterwards,  to  an  office  under  the  State  go>  i  fnment, 
duos  not  entitle  him  to  exemption.  Smith  V.  Prior  -1 
Winst.,  19. 

16.  The  governor's  certificate  can  havi  no  ct  in  such  a. 
case,  for  the  person  is  not  an  officer,  his  appointment  being 
void.     Ibid. 

17.  A   person  who  isabonded  exempt  from  conscription,  on 
it  of  his  being  the  owner  or  manager    I.  bodied 

slaves,  under  the  act  of  congress  of  17th  February,  1864,  sec.  10, 

clause    i,  par.   1,  2  and  8,  is  in  the  servii f  the  Confederate 

States,  ami  is.  therefore,  not  liable  to  service  in  the  home  guard 
te.      Wood  \ ,  Bradshaw,  2  Wi  isl  .  22. 

18.  Application  for  exemption  from  milii  count 
of  bi  i  i  v_    ■             uer  or  manag                                            |  slaves, 

iiiary, 
186  I  :  and  '■'  wets  1  ■  Id  thai  a  delay  to 
■22A  Ni 

had  lo  i  Win- 
ston 

1  in   March,  186  I  under  tin    ad    of  the 

of    February,    of  ,    ty-five 

years  i                                    of  his  enn  [to  serve 

rmy  during   the  ... :/    % 

20.  I  of  color  an  and  to 

by  the 
act  of  f  the  17th  February,  U 

2  Winsl 

21.  I  .  intmentto  an  office,  ruidi  i  ent, 
F  a  cii                 be  Sta1        rho  is  in                                      0f  Tjie 

. .  ,     anient,  cannot    bavStl 

.    'i  is  re- 
cognized by  the  constitution  of  th  utial  to  its 
Bridgman  v.  Malhtt,  2  Wins    ,112. 

22.  A  person,  who  has  been  enrolled  co  n  b,  ie  not  ex- 
empted From  military  service  under  tl  :    bruary, 


240   CONSIDERATION.— CON'S PIRACY.— CONSTAB LES 

1864,  by  becoming  the  driver  of  a  mail  coach.     Johnson  v.  Mat- 
left,  2  Whist,  125. 

23.  A  contractor  to  carry  thetnail  is  a  civil  officer  ( >f  the  Con- 
federate government,  and  therefore  exempted  from  service  in  the 
lome  guard  by  the  act  of  the  general  assembly,  passed  at  the 
session  of  July,  1863,  ch.  10.  BringU  v.  Bradshau;  2  Winsfe, 
129. 

24.  A  person,  who  was  between  the  ages  of  eighteen  and  forty- 
five,  at  the  date  of  the  passage  of  the  act  of  17th  February,  1864, 
and  arrives  at  the  age  ot  forty-five  before  he  is  enrolled,  is  ex- 
empt from  military  service  in  the  regular  army  for  the  war,  but  is 
Hal  ile  to  serve  as  a  soldier  in  the  senior  reserve*].  Goodson  V. 
Caldwell,  2  Winst.,  135. 

25.  A  man,  otherwise  liable  to  military  service,  under  the  act 
of  the  17th  February,  1864,  is  exempt  therefrom  by  becoming 
the  employee  of  the  editor  ofa  newspaper,  at  any  time  before  sii- 
rollment.      Unchurch  v.  Scott,  2  Winst.,  137. 

See  (Constitution — Acts  winch  have  been  declared  constitu- 
tional, 26,)  ^Habeas  Corpus,.  8-9.) 


CONSIDERATION 

See  ( Assumpsit — Of  the  consideration.)  (Bonds — Of  the  con- 
sideration of  bonds.)  (Dwd — Of  the  consideration.)  (Bills  of 
Exchange  and  Promissory  notes — Of  the  consideration  ofa  note 
or  endorsement.) 


CONSPIRACY. 

See  (Action  on  the  case— Conspiracy.)  (Indictment — When 
an  indictment  will  lie,  23-25-29-30-47.)  (Indictment — Form' 
and  matters  relating  theivtn,  101.)  (Indictment  Limitation  of 
time  within  which  an  indictment  Mill  lie,  6-7.)  (Evidence — In 
criminal  proceedings  and  indictments,  82.  > 


CONSTABLES— I. 


241 


CONSTABLES. 


I.  Of  their  election  or  appointment. 
II.  Of  the  power  and    authority  of   a 
constable. 


III.  Of  their  'bonds. 

IV.  Of  the  liability  of  them  and  ilieir 

sureties. 


I.       OF    THEIR    ELECTION"    OK    APPOINTMENT. 

1.  It  is  not  necessary  that  the  county  court,  authorized  to 
appoint  a  constable  in  case  of  a  failure  by  the  people  to  elec- 
one,  or  in  case  of  a  vacancy  from  any  other  cause,  should  be 
the  court  immediately  succeeding  the  time  appointed  for  such 
election,  or  immediately  succeeding  sue!;  vacancy.  The  county 
court,  at  a  subseqw  nl  t  im  3evi  u  justices  being  present.)  may 
fill  the  vacancy.     State  v.   Hull.  2  [red.,  267. 

2.  An  entry  on  the  county  court  records,  that  "on  motion  A 
B  was  permitted  to  renew  his  bond  as  constable  by  giving  C 
D  and  E  F,  as  sureties,  in  the  sum  of  $4,000,"  is  no  evidence 
that  A  B  was  duly  appointed  a  constable.      Ibid. 

3.  Seven  justices  must  necessarily  be  present  to  make  a  valid 
appointment  o-f  a  constable.  If  a  less  number  only  were  pre- 
sent, the  appointment  and  the  bond  taken  tinder  it  are  both  void 
State  v.  Wall,  2  Ired.,  212.  (The  bona  is  not  so  now.  See  Kev. 
Code,  ''li    78,  sec.  9. ) 

4.  The  power  gi%  en  to  the  county  court,  to  appoint  a  constable 
in  i  a  of  a  vacancy,  is  a  special  power,  and  cannot  be  exercised 
without  the  presence  of  seven  justices;  otherwise  both  the  ap- 
pointment and  the  bond  given  under  it  are  void.  State  v.  Poic- 
(//.  2  Ired.,  275. 

5.'  The  county  court  has  no  jurisdiction  to  appoint  a  cons-fa- 
ble,  except  in  case  of  a  vacancy  in  the  district.  Statev.  Light- 
foot,  2  Ired..  306. 

6.  The  "county  town,"  which,  under  the  statute1  relating  to 
constables,  is  i  ntitl  d  to  an  additional  constable,  means  the  town 
which  is  the  seat  of  justice  for  the  county.     Ibid. 

7.  Where  theonlj  evidi  uce  of  the  appointment  of  a  constable 
was  an  ordi  r  of  the  county  court  in  the  following  words:  "Or- 
dered that  <b  S.  be  a]  pointed  constable,  and  that  he  enter  into 
bond  in  the  sum  of  §4,000  with  J.  <  >.  and  K.  1'.  his  sun  ties."  it 
was  held,  thai  this  ad  of  the  court  Was  void  and  conferred  no 
authority,  it  not  appearing  thai  any  case  existed  in  which  they 
could  by  law  exercise  the  power  of  appointing  a  constable.  State 
Briggs,3  Ired.,  357. 

8.  The  county  court  is  the  p  .  •  of  the  return  of  the 
election  of  a  constable,  and  its  adjudication  thereon,  while  it 
remaius  in  force,  cannot  be  questioned-;  aud  in  such  case  parol 

16 


242  CONSTABLES.— I 

evidence  cannot  be  received  to  show  that  in  fact  no  election 
took  place.     State  v.  Washburn,  4  Ired,  19. 

9.  When?  a  suit  is  brought  on  a  constable's  1m, ml.  and  it  ap- 
pears that  the  constable  was  appointed  by  the  county  court,  it  is 
incumbent  on  the  plaintiff  to  show  that  the  people  of  the  cap- 
tain's company  had  failed  to  elect  a  constable,  or  that  the  person 
so  elected  hail  died,  or  failed  to  qualify  and  give  bond  and ; secu- 
rity, or  that  there  was  a  tie;  as,  under  other  circumstances,  the 
appointment  of  the  court,  and  of  course  tile  bond  are  void. 
State  v.  Magness,  1  Ired.,  217. 

10.  Where  the  only  evidence  of  the  appointment  of  a  consta- 
ble was  that  "A  B  was  appointed  constable  tor  the  town  of  Ox- 
ford, who.  entering  into  bond  for  $4,000  with  C  D,  &c,  as  sure- 
ties, was  duly  qualified,"  it  loasheld  that,  in  the  absenoeof  any 
evidence  from  the  records  o\  tli  \  court,  that  there  was  a  vacancy, 
the  county  courl  had  no  power  to  appoinl  a  constable,  and  that 
a  bond  given  under  such  appointment  was  void.  States.  WTi<j- 
gins,  4  Ired.,  27o. 

11.  To  make  the  appointment  of  a  constable  bj  the  county 
court  valid,  it  must  appear  from  the  record  of  the  court  itself 
that  tie:  appointment  was  made  undei  such  circumstances,  as, 
under  the  statute,  authorized  them  to  make  it.  /'/.  rce  v.  Jones, 
4  Ind.,  326. 

12.  In  such  ■  rol  evidence  is  qo1  admissible  to  show 
that  a  person  ha  I  ot  had  ao1  been  elected  a  con  table  by  the. 
people,  at  the  ;■■  ulai  |  eriod  of  election:  nor  to  show  that  a  reg- 
ular return  had  been  made  to  the  county  court  by  the  proper 
returning  officer,  of  the  election  of  a  constabL  bj  the  people, 
and  thai  such  return  had  been  lost  or  d  stroyed  b)  the  clerk  of 
the  court;  nor  that  the  proper  number  of  ji  on  the 
bench,  when  the  appointm  nt  of  constable  was  made.  The 
proper  course,  in  such  cases,  is  to  move  the  c  court  to 
amend  the  n  ird,  i  nc  pro  tunc,  so  as  to  rnak  it  speak  the 
truth.     Ibid. 

13.  Where  the  record  of  the  couhtj  court  stated  that  "A  B, 
having   been  appointed  constable,  came  into  open  court,   and 

■  cording  to   i  ■  hel  I  '<  iial    the   record 

mast  be  understood  to  mean  that  lie  had  been  elected  and 
el  •■  ed  in  the  manner  in  >\  1 1 i. •  1 1  the  law  required  constables  to 
be  elected,  to  wit,  by  the  p  'ople.  State  v.  Fdleniaider,  4 
[red.,  364. 

14.  The  following  efcry  on  the  records  of  t he  county  court; 
"  It  appearing  to  the  satisfaction  of  the  court  •  ii..  (and 
six  other  justices)  that  E.  S.  has  been  appointed  constable  in  Capt 
P.'s  company,  the  said  E.  S.  comes  into  court  and  enters  into  bond 
&c,  which  is  approved  by  the  court,"  imports  th  I  E  S.  had  been 
chosen  by  popular  election,  according  to  law,  and  that  it  was  so 


CONSTABLES— I.-IL-III.  243 

decided  by  the  county  court,  and  therefore  the  appointment' was 
a  valid  one.      Welch  v.  Scott,  -r>  Ired.,  72. 

L5.  Where  the  records  of  the  county  court  stated  that*1' the 
court  appointed  J.  <  r.  E.  constable,  he  having  been  elected  ;,,  ( lapi 
I's  company  ;"  U  was  held  that  this  was  evidence  of  an  election 
by  the  people,  and  not  of  an  appointment  by  the  court.  State  v. 
Eskridge,  5  Ired.,  411. 

16.  Where  the  only  record  of  th  r  appointment  and  qualifica- 
tion of  a  i  nstable  was  in  the  following  words:  "J.  R.  M. 
appeared  in  court  and  filed  his  bond  as  constable  for  the  county 
of  H,  for  one  year,  and  was  duly  sworn;"  it  wa-i  held  that  under1 
the  art  of  L844,  curing  defects  in  the  official  bonds  of  certain 
officers  therein  named,  this  wag  sufficient  evidence  of  the  ap- 
pointment  of  the  constable,  and  of  his  having  qualified  and 
given  bond.  State  v.  McMinn,  7  Ired.,  344.  (See  Revised 
Code,  ch    78,  sec.  ',).) 

17.  The  term,  for  which  a  constable  is  elected  or  appointed, 
does  not  expire  upon  the  day,  of  the  term  of  the  court,  corres- 
ponding with  that  on  which  he  had  the  year  before  qualified 
and  given  bond,  but  it  expires  at  the  instant:  when  his  successo] 
qualifies  and  gives  bond.  And  the  same  construction  musl  be 
given  to  the  special   provision   for  filling  vacancies.     State  v 

[red.,  3:!i. 

18.  Where  a  constable  is  appointed  by  the  county  court  at  a 
May  term,  bis  appointment  expires  ;-;  the  next  February  term, 
which  is  the  regular  time  prescribed  by  law  for  the  qualification 
or  appointment  of  constables.     Statev.  Bu  cham,  11  Ired.,  436. 

19.  To  show  that  a  person  was  a  constable,  ii  must  appear 
tl  ii  Ii  i-bvtod  In  the  people,  as  prescribed  bi  the  act,  Rev. 
Stair  ch.  24,  or  wa  c<  art  to  supplya  vacancy. 
as  provided  by  th  v.  Lane,  13  Ired.,  253.  (See 
Rev.  Code,  ch.  24,  sec.  2  and  6.) 

See  (Record,  14.) 

II      OF    THE    POWER    AKD    At'THORITV  OF  A    CONSTABLE. 

1.  A  constable'  cannot,  either  under  a  warrant,  nor  by  virtue 

of  his  office,  make  an  arrest  out  of  his  own  county,  although 

liable      lief  that  a  felony  has  :>    -n  <  oni'mitted,  and 

that  the  peismi   arrested  was  tic-  felon.      C-  <iriuml  v.    May    2 

Dev.   md  Bat.,  505. 

Se;     (Execution — Levy,    sale    and  iftpplicatioh    of  fie  money 

raised,  ■!   38    t6    18    !''  52  56  57.)     (Justices  of  the  Peace Of 

Justices  warrants  in  civil  cases,  16.) 

III.       OF   THEIR   BONDS. 

1.  A  constable's  bond,  made  payable  to  the  State  of  North 


244  CONSTABLES.— TIL-TV. 

Carolina,  taken  by  a  person  not  authorized  by  law  to  lake  it.  is 
void  for  want  of  an  effectual  delivery.  State  v.  Shirley,  1  Ired.., 
597.  (Such  a  bond  is  now  made  good  by  the  act  of  1842,  eh.  61. 
See  Rev.  Code,  eh.  78,  see.  '.'.) 

2.  There  may  be  eases  where  a  bond  payable  to  the  State, 
though  taken  by  an  unauthorized  person,  if  it  he  for  the  benefit 
of  the  State  itself  in  its  corporate  capacity,  may  be  good;  bill 
it  cannot  be  so  when  made  payable  to  the  State,  as  a  trustee  for 
others,  unless  taken  by  the  persons  specially  prescribed  by  some 
act  of  the  legislature,  rhe  will  of  the  State  isonlyto  beknown, 
where  declared  through  these  appointed  to  declare  it.     Tl  <d. 

3.  A  bond  executed  by  a  person,  where  there  is  no  sufficient 
evidence  of  his  election  or  appointment  as  constable,  though 
done  uinler  an  order  of  the  county  court,  cannot  legally  be 
accepted  by  the  court,  and  is  therefore  void.     Statt 

Ired.,  267.     (See  new  lev.  Code,  ch.  IS.  see.  ;i. ) 

4.  Under  tie.'  act,  Revised  (.'oil-,  eh.  78,  sec.  9,  ■■■■  b  n  d  given 
by  a  constable  at  October  term,  1851,  conditioned  for  the  faithful 
discharge  of  the  duties  of  his  office  for  one  year  from  the  elate, 
may  be  recovered  en.  notwithstanding  that  the  office  expired  at 
the  January  term,  1852,  ami  the  breach  was  subsequent  to  that 
time.   Hoel  v.  Cobb,  4  Jones,  258. 

5.  Where  a  bond,  in  the  form  of  a  constable's  1 !.  recited 

that  the  principal  obligor  had  been  appointed  a  constable  by  the 
county  court,  ami  1  hat  tin.'  bond  was  paya hie  to  1  he  g( ivernor  of 
the  State,  but  regular  in  other  respects,  and  the  repub  d  ci  insta- 
ble acted  notoriously  as  constable,  it  >r<is  held,  thai  a  suit 
might  be  sustained  upon  the  instrument,  as  a  common  law  bondi 
although  the  record  of  the  county  court  was  silent  as  to  41m 
appointment  and  qualification  of  the  principal  obligor  as  consta- 
ble.    Beidv.  Humphries,  7  Jones,  258. 

See  (Constabl  is — Of  the  liability  of  them  and  their  sureties.) 

IV.       OF    THE    LIABILITY    OF    THEM    AN"D    THEIR    SFRETI]  - 

1.  A  constable,  being  appointed  for  a  certain  district,  gave  a 
bond  "well  and  truly  to  discharge  his  duty  as  constable  in  said 
district,"  held  thai  though  he  was  an  officer  for  the  entire  county, 

and  might  be  sued  in  mi  action  mi  I  i ase,  for  a  breach  of  duty 

as  such,  by  neglecting  to  levy  on  property  any  where  iu  the 
county,  yet  he  and  his  sureties  could  not  lie  liable  on  the  bond, 
containing  such  a  special  restriction  of  his  duty,  for  omitting  to 
levy  on  property  in  the  county,  but  out  of  the  particular  district 
referred  to  in  the  bond.     Governor  v.  Morris,  3  Murph.,  146. 

2.  If  a  constable  sue  out  a  Warrant,  obtain  a  judgment  thereon 
and  receive  the  amount  thereof  from  the  defendant,  without  an 
execution,  and  fail  to  pay  it  over  to  the  plaintiff,  he  and  his  sure- 
ties will,  nevertheless,  be  liable  to  the  plaintiff  therefor  on  his 


CONSTABLES.— IV.  245 

bond.      Governor  v.  Franklin,  4  Hawks,  274.      (See  Eev.  Code, 
ch.  24.  sec.  7.) 

3.  The  sureties  of  a  constable  are  liable  for  his  official  miscort- 
dud  For  one  year  only;  thus,  where  a  note  was  put  into  the 
hands  of  a  constable  for  collection  in  the  year  1823,  andhe  did 

i lect  it  until  the  year  1825,  it  was  held,  that  his  sureties  for 

the  year  L823  were  not  liable  for  his  breach  of  duty  in  not  pay- 
ing the  money  to  its  owner.     Keck  v.  Coble,  2  Dev..  489. 

4.  A  constable  charc'ed  with  the  collection  of  a  debt  ought  to 

'  good  security  is  given  for  the  stay  of  execntion,  and 
ii   I  insolvent,  b  'omes  the  surety,  it  is  a  breach  of  his 

official  bond.     Governor  v.  Davidson,  ■'<  Dev.  361. 

eties  of  a   constable  are  not  liable,  under  the  act  of 
1818,  for  his  omission,  without  instructions  to  the  contrary,  to 
I  .in  execution  against  an  insolvent  debtor.     Governor  v. 
Cm    way,  3  Dev.  436,  (See  Rev.  Code,  ch.  24,  sec.  7.) 

li.  In  an  action  upoi stable's  bond,  for  failing  to  pay  over 

money  collected  by  him,  ii  is  necessary  to  prove  a  demand  upon 
him,  or  to  show  such  a  mi  p]  lit  ation  of  the  money  received,  or 
such  misconduct  on  his  part,  as  established  unfaithfulness  in  ac- 
'"M  ng  with,  and  paying  over  to  the  relator  what  he  is  en- 
1  to  receive.      //'/,//,  v.  Miller,  3  Dev.  and  Bat.  55. 

7.  Where  claims  are  put  into  the  hands  of  a  constabli  fi 
lection-  during  !  ir,  and  remain  in  his  hands  uncol- 
lected during  the  succeeding  year,  for  which  he  is  re-appointed 
a  failure  to  collect  during  the  latter  year  is  a  breach  of  his  of- 
ficial bond  for  that  year,  for  which  a  recovery  may  be  had 
against  him  ana  his  sur  (ties,  though  he  may  have  committed  a 

in  the  ]ip  ceeding  \  ar,  For  which  the  party  injured 
miu'ht  have  sued  ham  and  his  sureties  for  that  year.  Gov  mat 
v.  Li  <:.  4  1  lev.  and  Bat.,  4.">7. 

8.  A  constable  is  no1  obliged  to  receive  claims  tor  collection. 
as  he  is  bound  to  obey  a  legal  mandate;  but  if  he  do  so  receive 
them,  he  and  his  sureties  aire  bound  in  respect  thereof,  under 
the  act  of  1818,  so  far  as  thev  have  consented  to  be  bound,  "to 
endeavor  diligently  to  collect  them."  The  degree  of  diligence 
is  no  more,  and  no  less  thaai'  is  required  by  law  from  other  col- 
lecting agents.     State  v.  Holcombe,  '1  Led..  I'll. 

9.  A  constable  is  no!  bound  to  sue  out  a  warrant  on  a  claim 
put  into  his  hands  for  collection,  where  the  issuing  of  such  pro- 
cess would  be  entirely  fruitless.     Ibid. 

10.  An  action  upon  a  constable's  bond,  for  a  breach  of  duty, 
must  be  brought  upon  the  bond  for  the  year  during  which  the 
breach  occurred.  No  action  for  such  breach  can  be  sustained  on 
the  bond  given  for  the  succeeding  year,  the  bonds  not  being 
cumulative.     State  v.  Lackey,  '>  Led.,  2.">. 

11.  Where  money  has  been'  collected  during  one  year,  upon  a 
claim. put  into  a.  constable's  hands,  although  a  demand  upon  him, 


246  CONSTABLES.— IV. 

to  pay  what  has  been  so  collected,  is  not  made  until  the  next 
year,  the  breach  occurred  in  the  former  year,  and  the  sureties 
for  that  year  are  alone  responsible.     J hi<(. 

12.  Where  a  person  put  into  the  hands  of  a  constable,  for  col- 
lection, a  note,  the  amount  of  which  exceeded  the  jurisdiction  of 
a  justice,  and  the  constable  procured  the  maker  to  substitute  for 
it  two  ]"  t:  s  eai  ;i  within  tlu  |:  lisdiotic/i  i  1  ;  ;usti;  ■,  ard  aftei 
wards  failed  to  collect  the  same  when  he  might  have  done  so, 
it  was  held,  that  he  and  Ins  sureties  were  liable  on  his  official 
bond  for  a  breach  of  duty.     State  v.  Stephens,  3  [red.,  92. 

13.  In  cases  where  a  demand  of- a  claim  is  r  q  ured  before 
suit  can  be  brought,  as  against  a  constable  for  money  collected, 
when  the  demand  is  made  the  claim  is  turned  into  an  ordinary 
debt,  and  it  becomes  the  duty  of  the  debtor  to  pay  the  creditor 
in  a  reasonable  time.     Stati  v.  Sugg,  3  Ired.,  96. 

11  In  an  action  on  a  constable's  bond  for  a  breach,  in  not  col- 
lecting notes  placi  or  collection,  where  it  appears 
that  the  constaJ  A  :,  before  ii1  broug  ht,  I  >■  d  back  the 
notes  to  the  plaw  bifF,  and  the  On  btors  were  st.il]  good,  the  plain- 
tiff is  not  entitli  d,  by  rei  i  o  of  the  con- 
stable in   not  collecting   to    reco     r   tin    ivhole    i mi   of  the 

debts,  but,  unless  b<  shi  ctu  i  i  tied  thereby, 

he  is  entitled  onlyto  nominal  damages.  State  v.  Skinner,  3  Ired., 
564.     (Sheriffs  and  are,  in   such  cases,  now  liable  for, 

the  full  amount  of  the  claims  put  into  their  hands  for  collei  tion. 
Rev.  Code,  ch.  78,  sec.  3.) 

15.  "When  in  1835,  notes,  the:  '  of  wl  L<  b  were  proved  to 
be  solvent,  were  put  into  a  constable's  hands  for  ci  llei  tion,  and 
on  the  trial  of  an  action  for  the  breach  of  his  bond,  which  action 
was  brought  in  1840,  he  failed  to  account  for  or  produce  the 
notes,  it  ivas  h  id  that  the  whole  amounl  of  the  notes  might  be 
recovered  in  damages.     State  v.   Eskridge,  5  [red.,  411. 

16.  In  an  action  by  v>  i  isl  a  constable's  sureties  un- 
der the  lev.  Stat.,  cli.  81,  see.  3,  to  recover  moneys  collected  by 
a,  constable  by  virtue  of  his  office,  proof  that  the  constable  had 
received  goods  or  labor  in  satisfaction  of  the  claim  he  had  to 
collect,  is  sufficient  to  entitle  the  plaint  ■  to  n  i  over,  it  not 
being  requisite  that  he  should  have  n  e<  ived  the  actual  money, 
Wilson  \  '  ( 'qffidd,  .r>  fred.,  513.     (See  liev.  Code,  ch.  78,  sec.  4.) 

17.  A  constable  has  no  official  authority  to  collect  money,  ex- 
cept uji^v  execution;  and  he  and  his  sureties  .are  only  liable  on 
his  official  bead,  under  tin'  act  of  1818,  giving  'he  creditors  a 
remedy  on  that  bond  for  notes,  accounts,  tfec.^ut  into  his  hands 
for  collection,  when  it  is  proved  that  the  constable  was  the  cred- 
itor's agent  for  collecting  tin'  money  due  onihe  claims.  /('/'/- 
Hams  v.  Williarnso®,  6  Ired.,  281.  (See  Rev.  Code,  ch.  24, 
see.  7.) 

18.  A  person  placed  in  the  hands  of  a  constable  for  collection 


CONSTABLES.— IV.  247 

a  note  for  $158,  upon  which  the  constable  took  out  two  warrants 
against  the  debtor,  one  for  $80  and  the  other  for  $78,  as  due  by 
note,  and  the  debtor  appeared  and  confessed  judgments  before 
the  justice  according  to  the  tenor  of  the  warrants.  Unonthese 
executions  issued,  and  the  constable  failed  to  levy 
them,  as  he  might  have  done,  on  property  subjecl  to  their  eatis- 
faction,  i7  was  held  (Btjffik  C.  J.  dissentiente)  that  the  judgments 
the  debtor,  in  rh<  manner  stated,  were  valid  judg- 
ments; that  he  was  estopped  to  deny  their  validity;  and  that 
the  constable  was  1 
cutions  i  sued  on  them.     State  v.  Mangum,  6  I  red.,  369. 

19.  Where  le   receives  notes    or  o1  her     \  '■  !  aces  oi 

,  times  before  his  office  expires  and  does  not  collect 

r  want  of  time,  and   afl    r   his    office   expires,  refuses  to 

■    owner  the   notes  or  other   evidences  of  debt  so 

is  hands,  he  and  his  suretie:  on  his  official   bond  are 

tction  for  the  amount.     Statt  v.  Johnson,  7  [red.,  77. 

20.  If  the  ontinued  in  office  for  another  year, 
and  the  creditor  had  permitted  the  evid  of  debt  to  re- 
main in                       !•    mighl                 I  nee  of  a    new  contract 

ii  -■-,  upon  '  ■■■        cond  year  would 

be  I    '  '        Ibid. 

21.  The  bonds  of  cons  10  are  re-appointed  from  year 
to  year,  are  not  cumulative;  and,  therefore,  sureties  of  a  con- 
stable :  iit1        durh 

official  year  for  which  thej    became  his  sureties,  though  at  the 

if  the  year  he  i  :  been  re-appointed. 

Davis,  7  Ired.,  198. 

22  fnan  action  upon  a  constable's  bondfor  not  collecting 
bonds,  notes,  &c,  placed  in  Ins  hands  for  collection,  after  a  suffi- 
cient time  for  thai  purpose  ha  >  apsed,  it  is  incumbent  on  him 
or  his  suretie  that   he  could  not  have   collected  the 

money,  by  reason  of  the  insolvency  of  the  debtors  or  otherwise, 
and  also  that  he  had  returned  or  offered  to  return  the  si  curitiee 
for  the  debts  to  the  creditor,  otherwise  he  and  his  sureties  will 
be  liable  for  the  amount      Stab  v.   Wall,  8  Ired.,  11. 

23.  Where  a  claim  was  put  into  a  constable's  hands  for  collec- 
tion during  the  year  1839,  and  he  was  guilty  of  a  breach  of  duty 
in  ii'-    collecting  it  during  that  year,  and  he  was  re-appointed 

yi  ar  1840,  and,  the  claim  still  remaining  in  his  hands, 
he  was  again  guilty  of  a  similar  breach  of  duty,  it  was  h>i<:  that 
the  party  injured  had  his  election  to  sue  on  the  bond  of  either 
year,  or  on  both  bonds;  and  further,  that  the  circumstance,  that 
he  might  recover  on  th-c  second  bund,  did  not  mitigate  the 
damages  he  had  a  rightto  recover  on  the  first,  Statev  Wall. 
9  Ired..  2Q. 

24.  A  constable  is  the  agent  of  the  creditor  oi  d  ring  the 
year  he  continues  to  be  a  constable;  and  the  law  will  not  imply 


24*  CONSTABLES.— IT. 

an  agency  for  a  longer  time  than  the  appointment,  which  gives 
rise  to  it,  is  to  continue.     Ibid. 

25.  In  an  action  against  a  constable  for  a  breach  of  his  official 
bond,  in  not  collecting  a  debt,  the  relator  is  entitled  to  recover 
at  least  nominal  damages,  when  he  shows  negh  d  and  unreason- 
able delay  in  the  collection;  although  the  plaintiff  may  have  re- 
ceived the  amount  of  his  debt  from  the  constable  after  the  com'7 
mencement  of  his  action      State  v.  Mangum,  '•'  Lred.,  210. 

26.  The  person  to  whom  the  money  is  due,  on  a  claim  put 
into  the  hands  of  a  constable  for  collection,  should  be  the  relator 
in  an  action  on  the  official  bond  of  tin-  officer  for  a  breach  of  hia 
duty  in  relation  to  such  claim,  ami  not  the  agent  of  such  party; 
though  the  claim  had  been  first  put  into  the  hands  ol  the  latter 
he  being  a  constable  and  having  transferred  it  for  collection  to 
the  person  sued.     Statcv.  Former,  1<>  lred..  45. 

27.  The  party,  with  whom  a  constable  makes  the  contract  tor 
the  collection  of  a  note,  is  the  proper  relator  in  an  action  on  his 
official  bond,  ami  not  the  person  to  whom  the  note  is  payable. 
Sluli  v.  Corpening,  10  lred..  58. 

28.  The  reputation  of  the  insolvency  of  a  defendant,  in  an  ex- 
ecution, will  not  excuse  I  who  has  it,  from  liability  for 
aeglect  of  duty  in  not  endeavoring  to  ascertain  for  himself, 
whether  there  is  property  subject  to  the  execution.  State  v.  Ed- 
wards, 10  Lred.,  242. 

29.  Constables  'ire  not  general  collecting  agents,  except  so  far 
as  relates  to- claims  within  the  jurisdiction  of  a  justice;  there- 
fore, where  -mi  order  of  (lie  county  court  was  put  into  a  consta- 
ble's hands  for  collection,  it  was  held,  that  though  he  received 
the  moneys  his  sureties  were  not  liable.  Statev.  Outland,  11 
lred..  134. 

.">().  Where,.in  an  action  upon  a  constable's  bond,  the  breach 
assigned  is  that  the  constable  "h;*d  failed  to  return  to  the  rela- 
tor fche  note  which  he  had  placed  in  his  hands  for  collection,"  it 
is  a  sufficient  defence  for  the  officer,  to  show  that  he  had  ob- 
tained a  judgment  on  the  note;  forthen  the  note-  became  merg- 
ed in  the  judgmenl  and  remained  in  the  hands  of  the  justice. — 
States.  Hooks,  11  lred..  .".71. 

31.  Where  a  constable  was  appointed  at  February  term,  1848, 
and,  in  August  of  that  year,  a  claim  was  put  into  his  hands fo ^col- 
lection, on  which  he  obtained  a  judgment,  and  a  stay  was  grant- 
ed by  a  justice,  which  expired  during  February  term,  1849,  at 
which  time  the  said  constable  was  not  re-appointed,  but  in  July 
following  was  appointed  deputy  sheriff,  and  then  took  out  ■  v6- 
cution  on  the  claim,  collected  it,  and  failed  to  pay  it  ov  r, 
it  was  "held,  that  he  and  his  sureties  were  not  responsible  on  his 
constable's  bond,  no  default  having  been  committed  during  the 
year  of  his  appointment.     State  v.  McGowan,  12  lred.,  -14. 

32.  One  placed  notes  for  collection,  in  the  hands  of  L,.a  conr- 


CONSTABLES.— TV.  249 

stable,  who  win!  to  Alabama  without  collectii  g  them.,  where? 
upon  the  owner  took  them  from  L's  saddle  bags,  and  delivered 
to  G,  another  constable,  taking  and  placing  in  the  saddle  bags  a 
receipt  from  <!.  promising  to  iccount  with  I.,  who  afterwards  re- 
turned from  Alabama  and  received  the  money  from  G  and 
it  was  I  id,  ilut  the  sureties  on  L's  constable  bond  were  liable 
for  the  amount.     State  v.  Lawrence,  13  lred.,  1^4. 

33.  The  de;  ree  of  diligence  to  wliich  a  constable,  acting  in 
the  cap  i"i;;  of  a  collecting  ai  1818,  is  held 

liable,  is  that  which  a  prudent  man  would  ordinarily  exi 
I  ii    his  own  business.     Morgan  v.   H  n   ,  Busb. 

25.     (  v  ■•  Rev.  ( 'od  .  ch.  2  1.  si  c.  1. 1 

34  lh_-  is  in'l  bound  as  strictly  in  regard  to  claims  put  into  his 
hands  b  <  coll  ictii  a,  as  with  reaped  to  j  roc  ss  delivered  to  him 
as  an  officer.  Therefore,  where  a  claim  was  pu1  into  a  constat 
ble's  band  the  1st  of  December,  1851,  and  the  debl 
tin!  i  out  of  the  county  and  did  not  return  until  the  14th;  and  on 
the  20th  i  \  a I  was  sued  iut  on  which  judgment  was  ob- 
tained the  4th  of  January  following,  but  no  execxition  was 
issued  then  on  up  to  the  9th,  on  which  day  the  debtor  made  an 
assignment  oi  all  his  property;  it  was  held  thai  the  constable 
was  not  liable  for  negligence,  he  having  had  no  instructions 
from  th  tnd  no  grounds  to  suspect  the- debtor  of  inabil- 

bt.     Ibid. 

35.  V\  here  a  constablehad  rads  idmonej  !  a  :-  of  property, 
under  sever  il  i  cei  utions,  but  not  enough  to  satisfy  all,  and  one 
of  the  creditors  demanded  all  or  none,  when  he  was  entitled 
only  to  a  si  iall  part  of  the  sum  collected,  and  the  consl  i  pri  - 
posed  to  pay  him  more  than  his  proportion,  which  he  refused;  it 
int*  held  that :  the  constable  was  not  liable,  and  thai  under  the 
eircums  n  -  I  was  not  even  bound  to  show  that  he  had  the 
money  with  him  when  he  proposed  such  payment.  Statev.  Fair. 
1  Jones,  137. 

36.  A  receipt  given  by  a  constable  to  the  defendant  in  an  exe- 
cution for  the  money  on  a  claim  put  into  his  hands  for  collection, 
is  not  conclusive  against  him  and  his  sureties,  but  tiny  may 
show  that  he  did  not,  in  fact,  receive  the  money,  and  that  he 
could  not  collect  it  by  reason  of  the  debtor's  insolvency.  State 
v.  Barnett,  1  .'ones.  539. 

'■>'.  A  constable  who  lias  taken  a  claim  to  eollect,  as  an  agent, 
is  not  responsible  for  the  act  of  the  justice  in  taking  a  notoriously 
insolvent  person  as  surety  to  the  stay  of  execution,  it  not  appear- 
ing that  the  constable  was  present  when  the  surety  was  taken, 
or  had  any  intimation  or  ground  to  believe  that  such  surety 
would  be  offered.     Hardingv.  CkappeM,  6  Jones,  350. 

38.  In  a  suit  on  a  constable's  bond  for  failing  to  collect  a  claim 
put  into  the  constable's  hands,  no  demand  is  necessary  to  be 
ahown.     Nixon  v.    Baghy,  7  Jones„  4 


250  CONSTABLES.— IV.— CONSTITUTION. 

39.  Where  there  i.s  an  apparent  necessity  for  a  constable  to 

proceed  i diately  bo  collect  a  claim,  and  be  is  instructed  to  do 

so,  sixteen  days  delay  is  negligence;  and  in  ordinary  cases  five 
months  delay  is  negligence.    Ibid. 

40.  A  delay  for  eight  days,  to  execute  a  ft.  fa.  which  a  con- 
stable had  in  his  hands,  a  debtor  who  only  lived  ten 
miles  i  ':             i    d  to   I"   a  wanl  of  due  diligence,  and  made  the 

i  sible  in  dai    ig  s  to  I  b    en  ditor.    Ream  v.  ,"■ 
7  Jones,  150. 

41.  A  constable  is  bound  to  the  sam     degree  of  diligem   ;  in 
ing  process,  which  he  has  taken  ent   himself,  as  in  execu- 
ting tha  been  taken  out  by  the  creditor  and  put  into 
his  hauls. 

42.  Where  claims,  wit]  ce^s  jurisdiction,  are  put  intq 
the  hands  of  aeon  tab?  for  collection,  and  he  gives  a  receipt 
for  them,  a  fchoul   adding  "con  table"  to  his  signature,  he  will 

ied  to  have  reci  ived  them   in   hi     - ifficial 
3  wnton  ■<  1 

Jones, 

43.  V  claim  within  a  jurisdiction,  but  against 
a  non-  a  constable's  hands  for 
collection,;    id  be                             mey  butfailedto  pay  it  over, 

it  >'■<: !  held  •■  liable  for  the  amount  ;     official 

bond. 

44.  Where  1  I  of  the  county  court  showed  that  A  was 
appoinl  for  on  lit  was  pro\  'd  that  he 
acted  h  nri  the  year,  although  the  condil  ion  of  the 
bond  did  no!  i  xp    ■       '.              I'oi    wh^eh  he  was  appointed,  ami 

although   the    •  ipoii H    was   not    made  ai    the   term  of  the 

court  prescribed  by  law  for  appointing  constables,  yet  it  was  held 
that  he  and  his  sureties  \\*  re  liable  under  the  l.'e\  isi  I  <  'ode,  eh. 
78,  sec.  '.*,  for  a  breach  of  the  bond  during  the  year.  Shipment 
v.  McMnn,  1  Winst.,  122. 

See  (Evidence— Books  of  original  entries,  accounts,  receipts, 
&c,  14.)  (Interest,  15.)  (Limitations — Of  actions  on  official 
bonds,   i    5. ) 


CONSTITUTION. 


I.  Wio  can  declare  statutes  to  be  mi-  I  III.  Statutes  whitfb  liave  been  declared 

constitutional.  unconstitutional. 

II.  Statutes  which  hare  been  declared  I  IV.  Consl  ruction  of  various  clauses  of 
constitutional.  the  constitution. 


CONSTITUTION.— I.-IL  251 

I.       WHO    CAN    DECLARE    STATUTES    To    BE    UNCONSTITUTIONAL. 

1.  The  court,  will  not  incidentally  jud  constitution- 
ality of  a  law.     Freeim  n  v    Lester,  Conf  Rep.,  73,  (206.) 

2.  It  is  competent  few  o  an  act  of  assem- 
bly to  be   unconstitutial  and  void;  irntj  act  of 

i  lature  i^  within  i       i  d     irity,  and  is  to  be  di  clared  un- 
1  only  in  cases  where  no  di  ub1    i    ists.     Hoke  v. 
Si  racfc  rson,  4  Dev.  1. 

3.  Acts  fco  istitnl  ional ; 
and  wh                    court  belci                           of 

lily  was  drawn  in  question,  ai  I  was  in  supp 

it,  and  tl  ich  the  contraiy  could 

i  d  in  the  supreme  court. 
i  ni  Bat.,  81. 

II.       STATUTES    WKICH    HAVE    BEES    DEC]  5TITUTIONAL. 

1.  Tl     aci  which  au- 

thorize L  the  atto 

i]  lenciea 

to  tl:  :  '  I  to  1         astitu- 

!      State  v. ,  I  ,  28,  (38.) 

~J.  Tl  '  i    delin- 

constitutio 
did  not  take  away  '■     ted  rights,  bi 
ir   remedy  as    to    righl 

;;.    !  1812  which  authorized 

bonds  I  ution   in  his 

and  that  execution  mig  i  such  bonds,  was  c 

stitution   !  Berry  v.  H 

4.  Ai  lid  in  some  parts,  er  it  in- 
fringe the  constitntii  only  such  parts  of  the  suspension 
act  as  i  of  conl                         id.     Hence, 

ywhohad  i  xi  outi  1  a  bondunder  the  act, was  held  liable 
to  an  execution,  without  a  suit,  and  without  notice  of  a  judg- 
>n.     Ibid. 

5.  The  acts  of  asseml  jy  increasing  the  jurisdiction  of  a  jus- 
tice of  the  of  the  pi  ic       ■      ■   mi  titutional.     Keddie  v.  Moore,  2 

.,  11.     v.    P.,  Richmond,   v.    Boman,  Ibid,  46.     Wilson  v. 
Simonton,  i  Hawks.  482.     Smith  v.  Campbell,  3  1  lawks,  590. 

6.  \\  ben  a  cause  was  removed  to  the  supreme  court,  at  a  time 
when  the  court  on   motion  for  new  trials  considered  mail: 

law  only,  and  during  the  pendency  of  such  suit,  the  legislature 
declared,  that  "this  couri  does  and  shall  possess  power  to  gjant 
new  trials  upon  matters  of  fact,  as  well  as  law,"  the  law  is  eon- 
stitutional  and  gives  to  the  court  power  to  consider  matters  of 


252  CONSTITUTION.— II. 

fact  as  the  ground  of  a  new  trial.    Harrison  v.  Burgess,  I  Hawks, 
384. 

7.  The  power  of  limited  taxation,  for  comity,  purposes,  is  nnrs- 
sarily  confided  to  the  several  county  courts,  and  its  exercise  is 
no  infraction  of  the  bill  of  rights.  Lockhart  v.  Harrington,  1 
Hawks,  408. 

8.  Exclusive  enrolments  and  privileges  may  In-  granted  in 
consideration  of  public  sen  ices;  w  Inch  services  are  a  matter  of 
legislative  and  judicial  enquiry.      Therefore,  tin    <  barters  of  llie 

a,  and  other  like  companies  are  constitutional. 
Yadkin  Narigation  Company  v.  Benton,  2  Hawks,  10. 

!J.  The  revenue  law,  relating  to  pedlars  is  not  liable  to  the 
e;  i-  ii  <:, lonai  :  i .|,  i::jn  i  i  p;ivir.-g  the  paity  ci  the  rignt  ci 
trial  by  jury;  nor  does  it  violate  the  spirit  of  thai  clause  of  the. 
Federal  constitution,  which  prohibits  the  states  from  laying  any 
tinposts  or  duties  on  imports  or  exports.  Cowlcsv.  Brittain;  2 
Hawks.  204. 

10.  A  power  of  distress  gi  ren  to  a  navigation  company,  upon 
■i  refusal  to  pay  their  tolls,  is  constitutional,  the  action  of  re- 
plevin beii  a  remedy  for  its  abuse.  State  v.  Patrick,  3  Dev., 
478. 

11.  The  act,  imposing  a  tax  upon  itinevanl  dealers  in  jewelry, 
is  not  repugnanl  to  the  c stitution  of  the  I  nited  States,  al- 
though the  jewelry  may  have  been  imported  from  another  State. 
Wynne  v.   Wright,  1  Dev.  and  Bat.,  19. 

12.  The  acl  of  I  i  tigress  of  1825,  ch.  275,  see.  35,  exempting 
postmasters   from  serving  on    juries  is   constitutional.      Stated 

Williams,  1  Dev.  and  Bat.,  37'2. 

13.  The  acl  in  the  Raleigh  and  Gaston  railroad 
company  declared  constitutional.  Davis  v..  Raleigh  and  Gaston 
railroad  company,  2  Dev.  and  Bat.,  451, 

14.  The  acts  of  1809  and  1816,  prohibiting  the  circulation  of 
small  promissory  notes  or  due  bills  as  money,  are  constitutional. 
State  v.  Humphreys,  2  Dev.  and  Battle,  555.  (See  Rev.  Code, 
ch.  36,  see.  5  and  6.) 

15.  The  act  of  1831,  ch.  13,  which  provides  for  the  collection 
of  fines  imposed  upon  free  negroes,  and  free  persons  of  color, 
convicted  of  any  criminal  offence,  by  directing  them  tobi  hired 
out  under '.■erfain  rules,  regulations  and  restrictions,  is  not  re, 
pugnanl  to  any  of  the  sections  of  the  constitution,  and  \i 

tore  constitutional.     State  v.  Manuel,  4  Dev.  and  Ba1  ,20       !    e 

Rev.  Code,  ell.  107,  see.   75. ) 

16.  The  acts  of  1800,  1808  and  1809,  prohibiting  I  of 
spirifeious  liquors,  and  other  articles,  excepl  by  licensed  stores 
and  taverns,  near  a  church,  meeting  house,  o  ■■  her  p'u  ci  \. '  ere 
persons  are  assembled  for  divine  worship,  arc  e, institutional. 
State  v..  Muse,  4  Dev.  and  Bat.,.  319.  (See  Revised  C  do  ch.  974„ 
sec  7.), 


cossriTrnox.— n.  253 

17.  The  legislature  has  a  constitutional  right  to  pass  an  act, 
such  as  the  act  of  L840  ch.  53,  entitled  "an  act  to  tix  the  loca- 
tion of  _the  town  of  Hendersonville,"  changing  the  location  of 
the  seat  of  justice  of  a  eo'unty,  although  a  contract  for  the  ]  nr- 
chase  of  a  particular  siti-  had  already  been  made  by  the  commit 

.oners   appointed  by  law  for  that  purpose.     State  v.   Jones,  1 
lied.,  414. 

18.  The  act  authorizing  the  wardens  of  the  poor  to  s<  ize  any 
horses,  cattle,  hogs  or  sheep,  belonging  to  a  slave,  is  not  uncon- 
stitutional. McNamara  V.  Kerns,  '1  Ired..  66.  (See  Rev.  Code, 
ch.  86,  sec.  20.) 

19.  The  act  of  1840  ch.  30,  entitled  "an  act  to  prevent  free 
persons  of  color  from  can  I  arms,"  is  constitutional.  State 
v.  Netcsom,  5  [red.,  250.     (See  Rev.  Code,  ch.  107,  sec.  (56.) 

20.  ttisthe  settled  construction  o   thecoi itionof  the  United 

States  that  no  limitations  contained  in  thai  instrument,  upon  the 
powers  of  government,  extend  to  or  embrace  the  different 
states,  unless  they  are  mentioned,  or  it  is  i  xpreseed  to  be  so  in- 
tended.    Ibid. 

21.  The  charter  of  the  town  of  Wilmington,  authorizing  the 

commissi* rs'   to  tax  transient  traders,  for   purposes  of  police; 

is  not  unconstitutional.     But  the  tax  for  that  pi 

by  the  act  of  1811  ch.  64,  must  be  laid  annually.     Co 
of  Wilmington  v.  Eohy,  8  Ired.,  250. 

22.  The  aci  of  1850  ch.  248,  which  authorized  the  adminis- 
trator of.  the  deceased  sherifl  of  Currituck  county  to  collect  cer- 
tain arrearages  of  taxes,  was  nol  uncoti  titntional,  though  by 
the  gen  ral  law  the  sureties  of  a  deceased  si  ..  author- 
ized to  colled  in  such  cases.  Morton  v.  AshU.e,  1  Jones,  312 
(Sc  prii  ■  acts  of  1850,  ch.  248  and  Rev.  Stat.,  ch.  102  sec 
43,  Rev.  Cod  ,  ch.  99,  sec.  83.) 

23.  The  act  of  1850,  entitled  "an  act  to  repi  al  an  act  entitled 
an   act,  to  ;  ive  jurisdiction   to  the  superior  o 
Robeson,  in  all  cases   where  the  intervention   of  a  jury  shall  be 

is  constitutional,  though   il    maki  s   i1     ' 
with  the  majority  of  the  justice:   ol  the  couutj  count  to 
jury  trials  therein.      Thompson  v.  Floyd,  2  Jones,  313. 

24.  Thead  of  1855,  "to  provide  forthe  better  government  of 
the  town  of  Louisburg,  in  Franklin  county."  which  gives  to  the 
magistrate  of  police  power  to  fine  offenders  for  disorderly  con- 
duct not  cognizable  by  the  general  law,  is  constitutional.  '  Com- 
missioners of  Louisburg  v.  Harris,  7  Jones,  281. 

25.  The  act  of  1862,  ch.  57,  sec.  86,  par.  19,  sch.  lule  B,  wan 
ratified  the  11th  day  of  February,  1863.  It  imposed  a  tax  of  all 
the  ndt  profits  above  75  per  cent,  on  the  cost  of  production  on 
every  person  or  corporation  manufacturing  cotton  or  woolen 
cloth,  counting  from  the  1st  day  of  January,  1863.  It  was  con- 
tended that  the  tax  on  the  profits  between  the  1st  Jay  of  Janu- 


254  CONSTITUTION— II.-III. 

arv,  and  the  lltll  of  February,  1863,  was  a  tax  on  past  profits, 
and  therefore,  in  effect,  a  poll  tax  imposed  contrary  to  the  "'Ordi- 
nance in  relation  to  taxation,"  passed  by  the  convention  of  18S1, 
and  that  the  act  was  6ft  that  account  unconstitutional;  but  it 
was  held  that  the  tax  imposed  was  upon  present  and  accruing, 
and  not  upon  past  profits,  and  that  consequently  the  act  was 
constitutional.     Murehison  v.  McNeill,  1  VVinst,  220. 

26.  The  ads  of  the  Confederate  Congress"  of  the  5th  of  Janua- 
ry and  17th  of  February,  1864,  concerning  the  conscription  of 
principals  who  have  furnished  substitutes  in  the  army,  arc  con- 
stitutional and  valid.     GatlinY.  Walton,  1  VVinst,  333. 

See  (Corporations— Of  particular  corporations,  6.)  (Fraud — 
Conveyances,  agreements,  &c,  fraudulent  as  to  creditors,  71.) 

III.       STATUTES    WHICH    HAVE     BEEN    DECLARED    CTNCONST1TUTIONAL. 

1.  By  the  constitution  of  the  State,  every  citizen  has  aright. 
to  a  decision  of  a  jury  in  relation  to  his  property.  The  act  of 
assembly,  therefor*       I    1785,  requiring  the  court  to  dismiss,  on 

;,  the  suits  brought  by  persons,  whose  property  had  been 
confisca  d,  ■■<■  in  t  the  purchasers,  on  affidavit  of  the  defend- 
ants, that  they  were  purohasi  rs  from  the  commissioners  of  contis* 
cated  property,  is  ui  constitutional  and  void.  Bayard  v.  Single- 
toil,  Mar.  48,(42.) 

2.  An  act  suspending  the  payment  of  debts,  such  as  the  sus- 
pension law,  passed  in  1812,  is  unconstitutional,  as  tending  to  im- 
pair tie   obligation  of tracts.    Jones  v.  C   ttcn  'en,  LCar.L.R. 

384,  (55.) 

3.  An  act  of  ass.  mbly  cami   b  ta       away  1  ty  of  a  I 
private  pi  rson  nor  of  a  common  corporal  ion.  much    less  of  the 

rersity,  which  is  directed  to  be  established  by  the  constitu- 
tion. The  act,  therefore,  of  1800,  the  ohjed  ol  which  was  to 
resume  the  escheated  properl  I  e  University  by  for- 

cts,  is  repugnant  to  the  c  on  and  void.      Trustees  of 

the  University  v.  Foy.,  3  Murph:,  58.  S.  C,  2  Hay.,  310,  (495,') 
and  374,  (572.) 

4.  An  act  of  the  assembly  a  u  i  ipating  slaves  belonging  to 
the  est  '  '  sonsent  of  th  adrfiinis- 
trator,  is   unconstitutional.     Allen  v.    Peden,  2   Car.  L.    1!.  638, 

(442-) 

5.  An  act  of  17-88,  declaring  that  certain  deeds  which  were 
not  executed  according  to  law,  should  be  held,  deemed  and 
taken  i  nd  effectual  in  law,  for  the  conveyance  of  the 
lands  iii:  ntioned  in  it,  is  unconstitutional,  being  in  violation  of 
the  4th  section  of  the  bill  of  rights,  which  declares  the  legisla- 
tive, exi  ;utive  and  judicial  powers  of  governmi  nt  to  be  e  pa- 
rate  and  distinct.     Robinson  v.  Barfidd,  2  Murpb.  390. 

6.  The  act  of  1832,  respecting  the  election  of  clerks  of  courts, 


CONSTITUTION.— IIT.-IV.  255 

is  Tmconstitutlona]  and  void,  so  far  as  its  provisions  have  the 
effect  of  remo-ving  clerics  then  in  office,  before  their  regular 
terms  had  expir    I.     Hokev.  Henderson,  4  Dev.,  1. 

7.  A  legislative  chartertoa  corporation  is  a  contract  of  invio- 
lable obligation!  and  no  State  can  constitutionally  pass  any  law 
impairing  such  contract.  The  act,  therefore,  passed  in  1850  en- 
titled "an  ad  in  relation  to  exchanges  of  notes  between  the 
several  banks  of  this  State,"  which  declares  that  when  a  bank 
or  its  branch  presents  for  payment  a  note  of  anothei  bank,  the 
latter  may  pay  its  note  with  a  note  or  notes  of  the  same,  with- 
out regard  to  fche  place  where  the  rame  may  be  payable,  is  con- 
trary to  the  constitution  of  the  United  States,  and  therefore 

of  the  State  v.  The  Bank  of  Gap  Fear,  13  I:  d,  75. 

8.  The  act  of  1850,  ch.  334,  sec.  9,  giving  to  tb  ■  mtendant  of 
police  of  the  t(  wii  ©f  Charlotte  The  power  of  trying  assaults  and 
batteries,  is  unconstitutional  and  void.    States.  Moss,2  Jones,  66. 

9.  The  private  act  of  L852,  ch.  I  U.  granringa  trad  of  land  to 
B.  II.  Stanmire,  which  had  b  en  previously  sold  by  come 

ere  of  the  State,  to  another  person,  and  for  which  the  State  had 
been  paid  by  sue  h  person,  or  bj  those  under  whom  he  claimed,  was 

nconstitutional  and  void,  under  ail.  !.  sec. 
the*' .  S.     Stanmire  v.  Taylor,  3,  Jones,  207. 

10.  Tl  t'the  re  em i  d!'  185  h  ch.  37,  si  c.  39,  ■ 

imposed  a  'rax  on  the  salaries  of  the  judges  of  tin  snpri  n 
superior  courl   .  v  as  in  the  o]  t  of  at     rn 

lor  uncon  ti  n  tonal  much  as  it  indirectly  lessened  their  sal- 
aries, ci  lit:;;'  ,  1  ;;.  sec.  -'.  <  h.  -J.  of  the  amendments  t< 
tic  cob             •■    if  the  State.     Sei   3  rones,   s   - 

11.  The  act  of  1860,1st  exl  a  issioi  ■■■.  16  '  called 
the.;ti\  !  i.  i  !n::.  }•  \  ti;a,!a  and'tnals  befon  jufctn  s,  and 
the  issi  Q|  cutions,  and  sales  under  exi  1  deeds 
of  trusl  'd  to  bi  unconstitutional  and  void.  Barnes  v 
Barnes,  8  Jones,  366.  (This  act  was  repealed  by  the  act  of 
I860.  2                session,  ch.  11. ) 

See  i  Frauds— Conveyances.  Agreemi  nts,  &c. , fraudulent  as  to 
creditor  ,  71.) 

IV.     CONSTRUCTION  OF   VAEIOl  ses  of  the  constitution. 

1.  The  26th  section  of  the  constitution  merely  intended  to 
prescril  >e  an  uniform  mode  of  issuing  writs.  U-  cfieyv.  ( ',  rmolt,  1 
Murph.,    ■ 

2.  Nop  i  on  shall  be  deprived  of  hurproperty  oi  right,  without 
notice   ami   an   opportunity   of  defending   them. 

..  ;.'  Murph.,  161. 
:i.   In  doubtful  cases  the  court  will  not  declare  an  act  of  the 
legislature  unconstitutional,  but    will  only  do  so  when  such  is 
plainly  and  obviously  its  duty;  therefore  where  the  legislature 


25G  CONSTITUTION.— IV. 

gave  to  a  bank,  created  for  the  public  benefit,  a  summary  mode 
of  collecting  its  debts,  the  court  refused  to  declare  the  act  to  be 
unconstitutional.  Batik  of  Newbern  v.  Taylor,  2  Miirph.,  266, 
S.  O,  1  Car.  L.  R.  24(5,  (20.) 

4.  An  ordinance  of  the  commissioner  of  an  incorporated 
town,  -which  condemns  property  without  hearing  the  owner  is 
unconstitutional.     Shaw  v.  Kennedy,  N.  C.  Term,   R    158,(591.) 

The  bill  of  rights  declares  that  "no  ex  post  facto  laws  ought 
to  be  made"  Expost  facto  laws  are  of  different  kinds.  1st.  Every 
law,  which  makes  an  action  done  before  the  passing  of  the  law, 
and  which  was  innocenl  when  done,  criminal,  and  punishes  such 
action.  2.  Every  law  that  changes  the  punishment,  and  inflicts 
a  greater  punishment  than  the  law  annexed  to  the  crime  when 
committed.  3.  Every  law,  that  aggravates  a  crime,  or  makes  ii 
greater  than  when  committed.  4.  Every  law,  that  alters  the 
legal  rules  of  evidence,  and  receives  [ess  or  differi  nt  testimony, 
than  the  law  required  at  the  time  of  -the  commission  of  the 
offence,  in  order  to  convict  the  offender.  The  enhancement  of  a 
crime  or  penalty  seems  to  come  within  the  same  mischief  as  the 
creation  of  a  crime  or  penally.  Dickinson  v.  Dickinson,  3 
Murpli.,  H27. 

(>.  'flic  4th  section  of  the  fill  of  rights,  declaring  that  the 
executive,  legislative  and  judicial  powers  ought  to  lie  distinct, 
deprives  the  legislature  of  this  Stale  oi  all  judicial  power.  Hoek 
v.  //  nclerson,  4  Dev.  1. 

7.  A  determination  of  conflicting  rights  between  two  classes.* 
of  persons  is  a  judicial  net,  although  pronounced  in  the  term  of 
a  statute.     Neither  does  tin-  generality  of  its   terms  affect  its 
character.     Ibid. 

8.  A  legislative  act  which  deprives  one  person  of  a  right  and 
vests  it  in  another  is  not  a  "law  of  the  land"  within  the  meaning 
of  the  bill  of  rights.  Neither  is  one.  which  professes  to  punish 
a  citizen,  or  deprive  him  of  his  property  without  a  trial,  accord' 
iug  to  the  course  of  tic  common  law.     Ibid. 

9.  Whether  the  legislature  can  in  any  case  lake  private  prop 
erty  for  the  use  of  the  public  without  paying  for  it.  qucere.  But, 
assuming  that  it  cannot,  it  does  not  follow  that  the  payment  of 
the  compensation  must  be  precedent  to,  or  cotemporaneous  with 
the  taking.  On  the  contrary  il  is  competent  to  the  legislature  to 
authorize  the  taking,  leaving  the  assessment  of  the  quantum, 
and  the  payment  of  the  compensation,  to  he  made  subsequent. 
Davis  v.  iiiihi'jli  a:iil  Gaston  Railroad  Company,  2  Dev.  and 
Bat.,  451. 

10.  The  assessment  of  damages  to  be  paid  to  private  individ- 
uals, for  property  directed  by  the£legislature  to  be  taken  for  the 
use  of  the  public,  need  not  he  made  by  a  jury  of  twelve  free- 
In  ilders,  it  not  being  a  controversy  respecting  property,  within 
the  meaning:  of  the  14th  section  of  the  bill  of  rights.     Nor  is  it 


CONSTITUTION.— IV.  257 

such  a  "trial  by  jury,"  as  that  section  requires  to  remain  "sacred 
ami  inviolable."     Ibid. 

11.  A  railroad  company  is  a  private  corporation,  its  outlays 
and  emoluments  being  private  property;  but  the  mad  con- 
structed liy  them  will  be  a  public  highway,  and  consequently, 
they  may,  upon  paying  a  fair  compesation  therefor,  take  private 
property  under  the  sanction  of  the  legislature,  for  the  use  of  the 
company,  as  being  for  the  public  use.     Ibid. 

12.  The  39th,  19th,  3rd  and  12th  sections  of  the  constitution 
and  the  10th  section  of  the  bill  of  rights  commented  upon  and 
construed,  with  reference  to  the  act  of  1831  ch.  13,  which  pro- 
vides for  the  collection  of  tines  imposed  upon  free  negroes  and 
free  persons  of  color,  convicted  of  any  criminal  offence,  by 
directing  them  to  be  hired  out  under  certain  rules,  regulations 
and  restrictions.  State  v.  Manuel,  4  Dev.  and  Bat.,  20.  (See 
Rev.  ( 'ode,  ch.  107,  sec.  75. ) 

13.  Under  the  'sth  section  of  the  constitution,  a  residence 
within  the  State  for  twelve  months  immediately  preceding  the1 
day  of  an  election,  no  matter  in  what  county  or  counties  of  the 
State,  is  sufficient  to  entitle  one.  otherwise  qualified,  to  vote  for 
members  of  the  House  of  is,  for  the  county  in  which  he 
resides  at  the  day  of  the  election.  Roberts  v.  Gannon,  1  Dev 
and  Bat,  256. 

14.  I  ■;  a  e  in  the  county,  the  constitution  intends  a 
domicil  in  that  county.  This  requisition  is  not  satisfied  by  a  visit 
bo  the  county,  whether  for  a  longer  or  a  shorter  time,  it  the  stay 
there  be  for  a  temporary  purpose,  and  with  the  design  of  leaving 
the  county  when  that  purpose  is  accomplished.  It  must  be  a 
fixed  abode,  constituting  it  the  pla&   of  ins  home.     Ibid. 

15.  Arguments  upon  the  policy  of  a  law,  thoi  !  undi  ibtedly 
admissible,  are  to  be  listened  to  with  much  caution.  The 
interpreters  of  the  law  have  not  the  right  to  judge  of  its  policy, 
and  when  they  undertake  to  find  out  the   policy  co:  I 

by  the  makers  of  the  law,  tin  re  is  srreal  danger  of  mistaking 
their  own  opinions  on  th;  for  the  opinions  of  those  who 

had  alone  the  right  to  judge  of  matters  of  policy. 

16.  For  the  purposes  of  a  local  police,  the  charter  of  a  town 
may  constitutionally  authorize  the  inhabitants  to  tax  themselves, 
or  to  do  so  through  persons  chosen  by  them.      Gommiss 

Wilminqton  v.  Roby,  8  [red.,  250. 

17.  'I,  i  cor,  who  has  conveyed  his  land  to  a  trustee  by 
a  deed  in  trust  to  pay  his  debts,    has  not  a  freehold  to  unable 

him  to  vo a   ra   mber  of  the  senate,  under  the  3rd  section 

of  the  1st  article  of  the  amendments  to  the  constitution.  9  Ired. 
Appendix  to  the  cases  at  December  Term  1848,  in  the  case  of 
Wadd  U  rry. 

18.  In  such  a  deed  neither  the  trustee  nor  the  certui  que  trust 
has  a  right  to  vote  for  a  member  ofthe  senate,  under  the  section 

17 


258  CONSTITUTION'.— IV. 

of  the  article  ;\.l Hive  referred  to.  Ibid.  (The  freehold  qualifi- 
cation required  in  voters  for  a  member  of  the  senate  has  been 
abrogated  by  a  legislative  amendment  of  the  constitution.  See 
act  of  1856  ch.  12  and  13.) 

III.  'flic  Legislature  has  the  constitutional  power  to  consoli- 
date offices,  by  uniting  the  duties  (if  one  or  more  offices  in  one 
person,  -where  the  duties  are  not  ineongruous,  as  for  instance, 
the  offices  of  clerk  and  clerk  and  master  in  equity.  It  is  just, 
however,  that  the  operation  of  such  a  law  should  be  postponed, 
until  a  vacancy  occurs  in  the  office,  the  duties  of  which  are 
proposed  to  be  transferred.     Troy  v.  Wooten,  10  Ired.  377. 

20.  The  admission  of  dying  declarations,  as  evidence,  is  not  in 
opposition  to  that  part  i  f  the  bill  of  rights  which  says,  that  "in 
all  criminal  prosecutions  every  man  has  a  right  to  be  informed 
of  tin'  accusal  Ion  against  him,  and  to  confront  the  accusers  ;  n  1 
witnesses  with  oilier  testimony.    State  v.  Tilghman,  11  Ired.,  513. 

21.  The  legislature  has  the  constitutional  power  to  repeal  an 
act  establishing  a  county.  It  has  the  same  power  to  cousolodate, 
as  to  divide  counties;  the  exercise  of  the  power  in  both  cases 
being  upon  considerations  of  public  expediency.  Mills  v.  Wil- 
liams, il  Ired.,  558. 

22.  It  is  no  violation  of  any  clause  of  the  bill  of  rights  or  the 
constitution,  for  the  commissioners  of  a  city  or  town  to  pass  an  or- 
dinance requiring  oats,  fodder,  &c,  to  he  weighed  by  the  weigh- 
masler  of  such  city  or  town,  before  being  sold.  Intendant  and 
Commissioners  of  the  City  of  Raleigh  v.  SorreU,  1  J&»es,  49. 

23.  The  art.  1,  sec.  10,  clause  1,  of  the  constitution  of  the  Uni- 
ted Siales.  prohibits  the  legislature  of  this  State  from  making  a 
grant  of  a  tract  of  land  to  one  person,  when  it  had  been  sold  by 
commissioners  of  the  State  to  another  person,  and  the  State  had 
been  paid  by  such  person,  or  by  those  under  whom  he  claimed. 
Stanmire'v.    Taylor,3  Jones,  207.     S.  P.,  Stanmirev.  Welch,  3 

Jones.   21-1. 

24.  The  Ik-vised  Code,  ch.  36,  sec.  (!.  which  makes  it  indicta- 
ble for  a  person  to  pass  or  receive  bank  notes  of  a  less  denomi- 
nation than  three  dollars,  applies  to  notes  of  the  Bank  of 
Fayetteville  as  well  as  to  those  of  other  banks,  and  is  o©t  incon- 
sistent with  the  constitution  because  it  restricts  the  passing  of 
the  notes  of  that  bunk,  though  b\  its  charter  no  such  restriction 
was  imposed  upon  it.     State  v.  fflatth  vs.  '■'>  Jones,  451. 

25.  A  law  thaT  alters  (he  legal  rules  of  evidence,  mi,1  receives 
testimony  different  from,  or  less  than  what  the  law  required  at  the 
time  of  the  commission  of  an  offence,  in  order  the  more  easily  to 
convict  the  offender,  is  an  ex  post  /'<i</<>  law.  within  the  meaning 
of  the  constitution  of  the  United  States,  art.  1,  sec. !),  ch.  3,  and 
the  24th  sec  of  our  Bill  of  Rights.    Stale  v.  Bond,  4  Jones.  'J. 

26.  A  person  cannot  )»•  convicted  under  the  act.  Rev.  Code, 
ch.  3-1,  sec.  90,  making  the  owner  of  a  shop  liable,  (upon  evidence 


CONSTITUTION.— IV.— CONTEMPT.  259 

that  aft  agent  or  manager  of  his  business  had  sold  spirits  to  a 
slave)  for  an  act  done  between  the  passage  of  the  Revised  Code 
and  the  time  at  which  it  was  to  go  into  operation.     Ibid. 

27.  Where  a  person  has  taken  a  grant  for  the  bed  of  a  river 
not  navigable,  li is  property  therein  cannot  lie  taken  from  him 
by  the  State,  excepi  in  the  exercise  of  the  power  of  eminent 
domain,  and  then  only  for  public  use  with  a  provision  for  just 
compensation.  State  v.  Glenn,  7  Jones,  321,  S.  P.  Cornelius  v. 
Git  mi,  7  Jones,  512. 

See  (Frauds — Conveyances,  agreements,  &c,  fraudulent  as  to 
creditors,  71.)  (Insolvent  debtors — Proceedings  under  insolvent 
debtors  acts  prior  to  act  of  1822,  7-8-11.)  (Mandamus  and 
Quo  warranto,  ■>. ) 


CONTEMPT. 

1.  If  the  clerk  of  the  superior  court  willfully  refuse  to  make 
out  the  transcript  of -the  record  on  an  appeal,  the  supreme  court 
will,  on  an  affidavil  and  motion,  giant  a  rule  upon  him  to  show 
cause  why  an  attachment  for  a  contempt  should  not  issue  against 
him.      Tegantossee  v.  Rogers,  2  Hawks,  567. 

2.  If  an  officer,  who  has  been  ordered  to  make  a  return  of 
process  an  a  particular  day,  refuse  to  obey  the  order,  and  send  a 
contemptuous  message  to  the  court,  when  by  their  direction  he 
is  informed  of  it,  lie  may  bo  lined  by  the  court  for  a  contempt. 
Exparte  Summers,  5  1ml.,  149. 

3.  Where  a  court  imposes  a  line  or  imprisonment  for  a  con- 
tempt, if  the  court  do  not  (as  it  is  not  bound  to  do)  state  in  the 
order  the  tacts  constituting  the  contempt,  no  other  tribunal  can 
revise  its  decision.  Put  if  it  do  state  tin-  facts  upon  which  it 
proceeds,  a  revising  tribunal  may.  on  a  habeas  corpus,  discharge 
the  party,  if  it  appear  plainly  that  the  facts  do  not  amount  to  a 
contempt.  Ibiil.  (The  coiirt  must  now  specify  on  the  record 
the  particulars  of  the  offence  punished  as  a  contempt.  See  Re- 
vised Code,  ch.  34,  sec.  117.) 

4.  There  can  be  no  revision,  either  by  appeal  or  certiorari,  of 
the  judgment  of  a  court  of  record  for  imposing  a  punishment 
for  a  contempt  of  the  court,  stated  by  the  record  to  have  been 
committed  in  open  court.     State  v.   Woodfin,  -r>  Ired.,  199. 

5.  Tin-  power  to  commit  or  line  for  a  contempt  is  essential  to 
the  existence  of  every  court,  and  must  necessarily  be  exercised 
in  a  summary  manner.     Ibid. 

6.  The  punishment  for  a  contempt,  and  a  conviction  on  aa 


260 


CONTEMPT.— CONTRACT.— T. 


indictment  for  the  same  act,  where  a  crime,  are  diverso  intuitu,  and 
will  stand  together.     Ibid. 

7.  A  justice,  who  grants  an  appeal  to  court  from  a  judg- 
ment, which  he  has  rendered,  and  takes  the  r 
security,  but  afterwards  defaces  the  appeal  bond  and  fails  to 
return 'the  papers  to  the  proper  court,  although  guilty  of  a  mis- 
demeanor, is  not  guilty  of  a  contempt  under  the  act  of  1846,  ch. 
66.  Weaver  v.  Hamilton,  2  Jones  343.  (Sec  Revised  Code,  ch.  34, 
sec.  117.) 

8.  The  act  of  1846,  Rev.  Code,  ch.  35,  sec.  117,  concerning 
attachments  for  contempt,  by  which  the  court  is  required  to  have 
the  particulars  of  the  offence  specified  on  the  record,  do 

give  to  the  party  guilt;,  of  a  contempt  a  right  to  an  appeal,  or 
to  a  writ  of  certiorari.     State  v.  Mott,  4-  Jones,  449. 

Where  a  person  was  appointed  by  the  county  court  a  com- 
missioner to  sell  a  slave  for  the  purpose  of  a  partition,  and  the 
security  taken  by  him,  although  reputed  to  be  good  at  the  time 
of  the  sale,  turned  out  to  be  ba  I  before  the  money  could  be  collect- 
ed, it  was  held,  if  under  the  circumstances  there  were  any  remedy 
for  the  loss,  an  attachment  against  th  •  commissioners  under  the 
provisions  of  the  Revised  Code,  ch.  34,  sec.  117,  for  a  pontempt 
for  not  paying  the  money  into  court,  under  a  rule  for  that  pur- 
pose, was  not  the propei1  one.  Pritcliardv.  Oldham,  8  Jones,  139. 
See  (Costs — In  civil  proceedings;  when  the  plaintiff  pays 
■  costs,  16.) 


CONTRACT. 


I.  Construction  of  contracts,  am!  when 
an  action  will  lie. 
II.  Of  the  sale  of  personal  chatties. 


HI.  Contracts  as  affected  i>\  the  statute 

of  frauds. 
IV.  Void  and  voidable  contacts. 


CONSTRUCTION    OF    00NTI4ACTS,    AM)    WHEN    AN    ACTION    WILL    LIE. 

1.  A  purchased  a  hill  of  B,  drawn  by  C,  who  was  B's  debtor, 
on  New  York;  B  being  about  to  leave  town,  .V  asked  him 
"how  shall  I  get  your  endorsement,"  to  which  B  replied  "I  will 
leave  an  order  which  will  secure  you,"  lield,  that  this  arm  i  tited 
in  a  contract  of  indemnity  from  B  to  A.  WilJcins  v.  Mt 
2  Hay..  333,  (508.) 

■_'.  Oil  a  promise  to  deliver  goods,  a  demand  before  suit  is  in- 
dispensably necessary.     Benners  v.  Howard, Tay.,  1!!*.  (93.) 

3.  A  person,  against  who;  u  there  was  a  judgment,  solda  slave 
at  auction  for  the  purpose  of  paying  it,  but  the  purchaser  not. 


CONTRACT.— I.  261 

complying  with  the  terms  of  the  sale,  he  took  the  slave  home 
until  they  should  be  complied  with;  and  afterwards  offered  to 
deliver  the  slave  if  the  price  were  paid ;  when  the  purchaser  re- 
fused to  pay,  and  disclaimed  all  right  to  the  slave.  Execution 
was  afterwards  issued  upon  tin-  judgment,  and  the  same  slave 
sold  under  it  for  a  less  price,  and  defendant  in  the  excution 
brought  suit  to  recover  the  difference  of  the  price;  it  was 
lull,  that  he  could  not  recover,  because  the  circumstances  showed 
that  the  parties  had  rescinded  the  contract.  Reddick  v.  Trot- 
man,  2  Murph.,  165. 

■4.  A  promise  to  bringsuit  in  a  short  time,  on  a  bond  on  anoth- 
er person,  which  the  plaintiff  had  received  in  payment,  as  the 
price  of  land  sold  to  the  defendant,  means  a  reasonable  time, 
which  is  a  matter  of  law  to  be  decided  by  the  court.  Murray  v. 
Smith,  1  Hawks,  41. 

5.  Where  executors  contracted  to  soil  their  testator's  in!  rest 
in  certain  lands,  "no  incumbrances  guaranteed,"  and,  after  the 
contract,  tendered  a  sufficient  deed  of  conveyance  to  the  pur- 
chaser, which  lie  refused,  it  was  held,  that  the  executors  were 
entitled  to  recover  the  purchase  money,  without  showing  that 
the  title  to  the  land  was  in  their  testator.  Dver  v.  Hair  U,  2 
Hawks.  50. 

(J.  .V  sold  to  B  a  negro  hoy  defective  in  his  eyes,  and  it  was 
afterwards  agreed  between  the  parties  that  if  A,  who  was  going 
to  Charleston,  should  bring  hack  with  him  a  negro  hoy.  he 
would  let  B  have  him,  and  take  hack  the  defective  negro.  A 
did  bring  a  negro  hoy  from  Charleston  and  sold  him  to  a  third 
person;  and  in  an  action  by  B  against  .V,  on  this  agreement,  it 
was  Jield  that  the  delivery  of  the  defective  negro  was  to  be  an 
act  concurrent  with  the  delivery  of  the  one  brought  from  Charles- 
ton, and  that  neither  party  could  sue  upon  the  contract  without 
averring  and  proving  a  tender  or  readiness  to  perform  his  part. 
Biitfain  v.  !<iu'>ti:,  2  Hawks.  ~_u2. 

7.  It  seems  that  an  assignable  contract  can  only  be  assigned, 
so  as  to  enable  the  assignee  to  sue  in  his  own  name,  by  writing 
on  some  part  of  the  same  paper  which  contains  the  contract. 
Estes  v.  Hairston,  I  Dev.,  354. 

N.  Where  land  was  sold  upon  the  vendee's  agreeing  to  dis- 
charge sundry  executions  levied  upon  it,  anil  to  pay  the  balance 
to  the  creditors  of  the  vendor  as  he  should  direct,  upon  a  sale 
by  the  sheriff  on  one  of  the  executions,  a  promise  by  the  vendee 
to  pay  the  debt  of  a  creditor  if  he  would  not  hid.  provided  the 
vendor  would  consent,  is  not  void  as  being  against  public  policy, 
but  is  not  binding  without  the.  vendor's  consent.  Graham  v. 
Reid,  2  Dev.,  364. 

9.  Where  it  was  agreed  to  abide  by  the  decision  of  the  supreme 
court  upon  a  case  stated,  an  averment  of  a  breach  of  that  agree- 
m  ent  was  supported  by  proof,  that  there  was  a  decision  of  the 


262  CONTRACT.— I. 

supreme  cotrrt,  upon  a  consideration  of  the  whole  ease,  although 
the  judgment  of  that  court  was  not  final,  bat  a  new  trial  was 
ordered  Cowan  v.  Damdson,  1  Dev.,  533. 
_  10.  Where  A  agreed  to  purchase  a  slave  tor  B,  but  took  the 
title  to  himself  and  afterwards,  tin-  slave  being  in  the  possession 
of  B,  who  tendered  the  purchase  money  to  A,  who  declined  to 
receive  it,  but  did  not  disclose  his  title,  it  was  held,  that  the  jury 
might  from  the  facts  infer  a  subsequent  sale.  Eppes  v.  McLe- 
more,  3  1  >ev.,  .'!4.">. 

11.  On  a  contract  to  deliver  specific  articles  a1  a  place  within 
a  certain  time,  it  not  appearing  that  any  act  was  to  be  done  by 
the  plaintiff  to  entitle  him  to  recover  for  a  breach  of  the  con- 
tract, it  is  not  necessary  for  him  to  prove  that  he  was  at  the 
place  during  the  time  appointed.  Cowper  v,  Saunders,  4  l>ev. 
283. 

12.  Where  concurrent  acts  are  to  done,  as  tie  one  party  to 
deliver  specific  articles  on  receiving  the  prices,  and  the  other  to 
pay  on  receiving  the  articles,  neither  can  sue  the  other  for  non- 
performance, without  showing  a  performance,  or  readiness  to 
perform.      Ibid. 

13i  Where  a  party  is  to  deliver  specific  articles  on  or  before  a 
given  da)',  if  he  intend  to  deliver  before  the  last  day  mentioned. 
he  must  give  a  reasonable  notice  of  his  intention,  to  the  other. 
Ibid. 

14.  The  sickness., and  consequent  absen-ce,  of  a  party,  is  no  ex- 
cuse for  the  nonperformance  of  his  contract.  Alexander  v. 
Smith,  4  Dev.,  364 

15.  Where  A  transfered  to  B  a  bank  note  for  $D0D.  to  secure 
the  payment  of  $600,  and  it  was  agreed  that,  if  the  $600  were 
not  paid  within  six  months,  the  note  should  be  the  absolute 
property  of  B;  such  contract,  if  intended  as  an  absolute  tale,  is 
not  void  for  the  excess,  for  want  of  consideration,  but  whether 
intended  as  an  absolute  sale  or  a  pledge  only  should  be  left  to 
the  jury.     Ibid 

16.  The  interest  of  A,  in  saeh  a  contract,  is  net  negotiable, 
and  his  assignee  cannot  support  an  action  at  law  against  B,  in 
Ins  own  name,  without  an  express  promise.     Ibid. 

17.  Where  a  contract  binds  one  collaterally,  and  depends  upon 
the  default  of  another  person,  notice  of  thai  defaull  ought  to  be 
given,  in  order  to  charge  the  person  secondarily  liable,  as  in 
cases  of  guaranties  and  the  like,  Adcoclcv.  Fleming,  2  Dev.  and 
Bat.,  22h. 

18.  When  the  Postmaster  General  vacates  a  contract  for  carry- 
ing the  mail,  and  transfers  the  route  to  another  person,  upon 
condition  of  his  paying  the  first  contractor  a  stipulated  sum,  the 
first  contractor  acquires  a  vested  right  to  such  sum;  and  the 
Postmaster  Geteral  cannot  subsequently  discharge  the  second 


CONTRACT.— I.  263 

from  its  payment.     DiUiardv.  Carherry,%  Dev.  and  Bat.,  280. 

19.  Where  the  controversy  in  a  cause  turns  upon  the  meaning 
of  the  parties  to  a  verbal  agreement,  in  relation  to  a  matter 
upon  which  there  is  room  for  dispute  it  is  proper  for  the  judge 
to  leave  il  to  the  jury,  as  a  question  of  fact,  to  ascertain  what 
was  the  agreement  of  the  parties  in  relation  to  such  matter. 
May  v.  Stewart,  4  Dev.  and  Bat,  160. 

20.  There  are  some  instanee8,in  which  upon  a  simple  demand 
of  money  due  from  the  defendant  to  the  plaintiff,  although  the 
contract  in  form  is  to  pay  the  same  on  demand,  an  a*  tion  may. 
nevertheless,  be  brought  without  the  special  averment  of  a  de- 
mand, and  sustained  without  proof  of  a  demand.  These  were 
cases  in  which  it  was  seen,  or  thought  to  be  seen,  that  the 
money  was  due  before  any  demand,  and  therefore  the  demand 
was  not  regarded  as  one  of  the  terms  of  the  contract.  But  a 
previous  demand  is  necessary,  where  the  engagement  sought  to 

eniJ  reed  is  an  original  specific  undertaking,  by  parties  bound 
by  no  previous  obligation,  and  owing  no  duty  to  the  plaintiff, 
other  and  further  than  the  duty  which  this  engagement  creates. 
Barret  v.  Munroe,  4  Dev.  and  Bat.,  194. 

21.  Where  a  subscription  was  raised  for  building  a  house  of 
religious  worship,  and.  upon  the  letting  of  the-  building  at  auc- 
tion, by  certain  commissioners  appointed  for  the  purpose,  the 

mts,  declared  thai  if,  or  work  was  done  accord- 

ing to  certain  written  specifications  and  accepted  by  the  com- 
missioners, they  would  pay  the  sum  at  which  the  building 
should  be  hid  off,  and  the  plaintiff  became  the  contractor,  and 
executed  the  work,  hut  it  was  rejected  by  the  commissioners 
upon  the  ground  that  it  was  not  executed  according  to  the  speci- 
fications in  four  particulars,  in  two  of  which,  however,  it  was 
shown  that  an  alteration  had  been  made  with  the  assent  of  the 
defendants,  it  ivas  held,  that  the  alteration  of  the  building,  with 

eat  of  the  defendants,  modified  the  contract  to  tin-  extent 
of  that  assent,  hut  left  it  subsisting  as  to  the  other  particulars: 
and  thai  as  to  them  the  acceptance  of  the  work  by  the  commis- 
sioners was  an  essential  term  of  the.  defendant's  engagi  ment, 
without  which  the  plan  till  could  not  recover;  and  it  was  held 
further,  that  the  plaintiff  could  not  recover  upon  the  common 
count  fir  work  and  lailior.  Young  v.  Jeffreys.  4  Dev.  and 
Bat..  216. 

22.  The  effect  of  a  contract  is  a  question  of  law.  Where  a 
contract  is  wholly  in  writing,  and  the  intention  of  the  trainers 
is  by  ho-,'  to  be  collected  from  the  document  itself,  there  the  en- 
tire  construction  of  the  contract — that  is.  the  aseertaiumt  nt  el 
the  intention  of  the  parties,  as  well  .as  of  the  effect  of  that  inten- 
tion— is  a  pure  question  of  law;  and  the  whole  office  ol  the  jury 
is  to  pass  on  the  alleged  written  agreement.  Where  the  con- 
tract is    by  parol,  the   terms  of  the   agre  sment  are   of  course  a 


264  CONTRACT.— I. 

matter  of  fact ;  and  if  those  terms  be  obscure  or  equivocal,  or 
arc  susceptible  of  explanation  from  extrinsic  evidence,  it  is  for 
the  jury  to  find  also  the  meaning-  of  the  terms  employed;  but 
the  effect  of  a  parol  agreement,  when  its  terms  are  given  and 
their  meaning  fixed,  is  as  much  a  question  of  law  as  the  con- 
struction of  a  written  instrument.     Ibid. 

23.  In  works  of  art,  it  is  a  prudent  and  common  stipulation, 
for  the  prevention  of  controversies,  that  the  construction  of  the 
work  shall  be  determined  by  some  persons  in  whose  judgment 
the  parties  have  confidence;  and  the  judgment  of  this  forum 
cannot  be  disregarded  or  revised  by  a  court  and  jury.     Ibid. 

24.  Where  a  contract  was  made  for  the  sale  of  a  lot  of  cotton, 
in  which  it  was  agreed  as  follows:  "the  price  to  be  fixed  on  in 
the  following  manner:  the  seller  is  to  select  either  Fayetteville, 
Cheraw  or  Camden,  and  to  name  a  time,  and  the  prices  are  to 
be  regulated  by  the  prices  at  the  named  market  and  time — the 
price  to  be  the  same  as  good  crops  of  cotton  sell  for  at  the  time. 
The  price  to  be  fixed  upon  by  the  1st  of  June  next."  //  was  held 
that,  by  a  just  construction  of  the  contract,  the  seller  was  to 
name  beforehand  a  market  and  a  day  by  which  the  price  was  to 
lie  regulated,  and  that  he  could  not,  on  the  last  day  allowed  him, 
name  a  market  and  a  preceding  day  for  that  purpose.  McNeely. 
v.  Carter,  1  Ired.,  141. 

25.  Where,  in  an  action  for  a  breach  of  promise,  it  appeared 
in  evidence  that  a  vessel,  her  tackle.  &c.,  hail  been  sold  by  the 
defendant  to  the  plaintiff,  on  the  loth  December,  1835;  that 
after  the  great  fire  in  New  York,  which  occurred  on  the  l:>th 
December  in  that  year,  some  of  the  vessel's  boats  and  sails  were 
missing,  and  were  supposed  to  have  been  destroyed  by  fire;  and 
subsequently  it  was  agreed  between  plaintiff  and  defendant  that 
the  defendant  should  pay  to  the  plaintiff  "whatever  sum  it 
should  require  to  put  the  vessel  in  the  same  repair  and  condition 
in  which  she  uxis  at  the  time,  of  the  sale,  over  and  above  five  hun- 
dred dollars."  Held  that  upon  this  evidence  the  plaintiff  could 
not  recover  on  a  count,  in  which  he  charged  that  the  defendant 
had  made  false  representation  at  the  time  of  the  sale,  and  that 
he  had  promised  to  put  the  vessel,  &c,  in  the  state  represented; 
over  and  above  the  sum  of  five  hundred  dollars.  Walker  v. 
Baxter,  1  Ired.,  213. 

26.  A  party  cannot  recover  on  an  implied  agreement  for  the 
price  of  goods  sold  and  delivered,  if  he  could  have  maintained 
an  action  on  a  special  contract  relating  to  that  price.  But 
where  the  special  contract  is  imperfect,  as  where  the  price  was 
to  be  the'market  value  on  a  certain  day  and  at  a  certain  place,  to 
be  fixed  by  the  seller,  and  he  fails  to  select  in  proper  time  the 
day  and  place,  he  may  yet  maintain  an  action  for  the  value  of 
the  goods  delivered,  and  declare,  in  indebitatus  assumpsit,  on  a 
quantum  valebat.     But  regard  must  be  had  to,  the  special  agree- 


CONTRACT.— I.  2G5 

ment,  so  far,  that  the  plaintiff  cannot  recover  a  higher  pFice  for 
his  goods,  than  he  could  have  done,  if  he  had  literally  or  duly 
observed  the  terms  of  the  special  contract.  Carter  v.  McNeely., 
1  Ired  448. 

27.  Where  the  owner  of  a  vessel  agreed  to  hire  her  to  anoth- 
er, tor  a  certain  period  and  at  a  certain  price,  and  stipulated  at 
the  same  time  that  she  should  be  "  furnished  •with  sufficient 
cables,  anchors  and  other  tackling,"  and  the  vessel  was  lost, 
before  the  expiration  of  the  period,  in  consequence  of  a  defect 
in  one  of  her  cables,  it  was  held  that  the  owner  could  not 
r  the  hire  fertile  whole  period,  under  the  special  contract, 
although  it  appeared  that  the  defecl  in  the  cable  (an  iron  one) 
could  not  have  been  discovered  by  the  mosl  attentive  examina- 
tion ;  the  stipulation  meaning  that  the  "cables,"  &c,  were 
actually  sufficient,  and  not  merely  that  they  were  apparently  so. 
Parh  r  v.   Gilliam,  1  [red.,  .r>1.">. 

2<S.  In  a  written  contract  the  terms  are  fixed,  and  the  mean- 
ing of  them  ie  a  question  of  law.  So  also  in  a  parol  e<  racl 
where  the  terms  are  precise  and  explicit.  But  in  a  parol  con- 
tract, if  the  parties  dispute  about  the  terms  of  the  agreement; 
and  these  are  obscure,  or  destitute  of  precision,  or  to  be  ii 
from  the  conduct  of  the  parties,  the  ascertainment  oJ 
terms  is  in  the  first  place  necessary,  and  this  is  clearly  a  ques- 
tion of  fact.     Masseyv.  Belisle,  2  Ired.,  170. 

29.  When  in  a  contract  no  particular  time  for  doing  an  act  is 
specified,  the  general  principle  is  that  it  musl  be  done  in  a  con- 
venient time,  to  be  judged  of  by  the  court,  according  to  the  sit- 
uation and  circumstances  of  the  parties,  unless  that  be  in  some 
respect  modified  by  the  terms  of  the  contract.  Hence,  where  A 
contracted  to  deliver  cotton  grown  on  his  plantation  in  Florida, 
"as  soon  as  it  could  be  picked  out  and  shipped,"  it  was  held, 
that  he  was  not  thereby  restricted  to  the  shortest  possible  time 
in  which,  by  any  means,  or  upon  any  terms,  he  could  convey 
the  cotton  to  a  seaport,  but  that  he  was  only  bound  to  employ 
the  usual  mode  of  transportation,  and,  therefore,  had  a  right  to 
wait  a  reasonable  time  to  avail  himself  of  that  mode.  WaddeU 
v.  Seddick,  i  Ired,  424. 

30.  Where  A,  by  an  unsealed  writing,  agreed  that  "  he  was 
held  and  firmly  bound  to  B  in  the  sum  of  two  hundred  dollars," 
conditioned  to  be  void,  provided  the  said  A  kept  and  maintain- 
ed a  certain  old  negro  woman  belonging  to  B,  1'ree  from  any  ex- 
pense to  B,  and  A  afterwards  failed  to  perform  his  agreement; 
it  was  held,  that  two  hundred  dollars  was  not  to  be  considered  as 
an  agreed  penalty  or  stipulated  damages;  that  the  agreement 
was  an  indemnity  to  B,  against  any  loss  or  expense  to  be  incur- 
red in  maintaining  the  said  slave  during  her  life;  that  the  obli- 
gation was  a  continuing  one  on  A,  and  that  B  might,  at  any 
time,  sue  A  for  neglecting  to  provide  for  the  said  negro,  and 


206  CONTRACT.— I. 

would  not  be  barued,  by  the  statute  of  limitations,  from  recover^ 
frig  any  damages  he  might  have  sustained  within  three  years 
before  the  commencement  of  the  suit.  And  it  was  held  fitrth  r, 
that  B  was  not  estopped  by  bis  acknowledgment  of  the  receipt 
ofHhe  price  of  a  negro  named  Daniel,  contained  in  a  bill  of  sale 
from  himself  to  A,  from  showing  that  the  price  of  Daniel  was 
the  consideration  of  the  agreemeni  declared  on.  Lanev.  Win? 
gate,  •">  [red.,  326. 

;!1  Where  the  agrees  ent  was  that  the  plaintiff  was  to  receive 
from  the  defendant  $50  for  Ins  work  for  twelve  months,  "10  to 
be  paid  when  the  time  is  half  out,  and  the  balance  when  the 
year  is  out,"  and  "if  can't  agree,  part  and  pay  according  to  what 
he  is  worth,  nof  to  be  considered  worth  as  much  the  first  as  last," 
and  at  the  end  of  9-|  months  they  parted*  and  the  defendant  con- 
tended that  the  plaintiff  was  In  receive  only  $10  fur  the  first  six 
months  and  $40  for  the  last,  the  court  was  correct  in  stating  to 
i!c  jury  that  if  this  were  the,  true  cottstruction  of  the  agree- 
ment, then  the  plaintiff  was  entitled  to  '■ecuver  lor  the  time  he 
served,  after  the  first  six  months.     Coax  v.  Skeen,  '■'<  [red.,  443. 

32.  A  sheriff,  from  whose  custody  a  prisoner  a  mimed  for  debt 
had  escaped,  agreed  with  B  that  if  lie  would  retake  the  prisoner 
and  deliver  him  at  the  county  town  within  a  certain  time,  he- 
would  pay  him  $400.  B  took  the  prisoner  and  had  him  under 
his  care,  within  the  time  a  lecified,  a1  his  own  house,  some  miles 
from  the  county  town,  intending  to  deliver  him  to  the  sheriff, 
when  the  latter  went  to  the  house  of  1!  and  seized  the  prisoner 
himself.  In  an  action  by  1'  against  the  sheriff  it  was  held, .first, 
that  the  contract  was  nof  >,:  'gi  ! ;  and,  secondly,  that  the  sheriff, 
having  prevented  the  plaintiff  from  performing  his  contract  lit- 
erally, while  he  was  in  the  progress  of  doing  so,  was  answera- 
ble to  him  for  the  stipulated  sum.     Ashcrqft  v.  Allen,  4  lied.,  96. 

33.  It  is  not  competenl  !.■  i  samine  a  witness  as  to  the  meaning 
of  a  plain  Mind  in  a  contract,  for  that  is  a  question  of  law  deter- 
minable by  the  coun.     CoUius  v.  Benhury,  5  lied.,  lis. 

34.  Where  a  subscriber  to  the  sf  ickofa  proposed  railroad  com- 
pany agreed  to  take  a  certain  number  of  shares,  provided 
however,  that  if  a  sufficient  amounf  were  not  subscribed  hvindi- 
viduals  to  secure  a  proposed  subscription  from  the  State,  within 
twelve  months,  lie  should  heat  liberty,  if  he  pleas  id,  to  withdraw 
his  subscription;  and  after  the  expiration  of  the  twelve  months 
he  paid  a  part  of  his  subscription,  it  was  held  that  he  was  hound 
to  pay  the  remainder  of  his  subscription,  unless  he  could  show 
that  tlie  required  amount  had  not  been  subscribed  to  entitle  the 
company  to  the  State's  subscription,  and  that,  in  consequence 
thereof,  he  had  elected  within  a  reasonable  time,  after  the  expi- 
ration of  the  twelve  months,  to  withdraw  his  subscription.  And, 
H  was  held,  furtlier,  that  his  payment  of  a  part  of  his  subscrip- 
tion, after  the  twelve  months,  showed  his  election  to  continue  a 


CONTRACT.— T.  207 

memberofthe  company.  Wilmington  and Befleigh Bailroced  6em- 
pany  v.  Bobeson,  5  [red.,  391. 

35.  A  proviso  is  the  statement  of  something  extrinsic  of  the 
subject  matter  of  the  contract,  which  shall  go  in  discharge  .of 
it;  and  in  case  of  acoveaant,  by  way  of  defeasance.     A  proviso, 

Fore,  need  not  bexstated  in' a  declaration,  but  the  defendant, 
ii'  he  wish  to  avail  himself  of  it,  must  aver  it  in  his  plea.     Ibid 

36.  In  construing ,a  jontract,  there  are  no  technical  rules  to 
determine  whether  its -stipulations  are  dependent  or  independent. 
but  every  agreement  ie  to  be  judged  of  according  to  its  own 
terms  and  tlie  nature  of  the  transaction  to  -which  ii 

best  to  effectuate  the  intention  of  the  parties.  The  order,  in 
which  lie.'  provisions  are  found  in  the  instrument,  doi  s  not  con- 
trol tli.'  construction,  which  is  to  be  collected  from  the  order  in 
point  of  time,  in  which  the  several  acts  of  the  differenl  parties 
are  to  be  performed.     Dwiggins  v.  Shaw,  (6  [red.,  46. 

37.  The  construction  of  a  written  contract  is  purely  a  matter 
of  law,  in  all  cases,  where  the  meaning  ami  intention  of  the  par- 
ties are  to  he  collei  ted  fi  an  the  instrument  itself.  Sizt  more  v. 
Morrou\  6  Ired.,  54. 

38.  Where  A  sold  a  tract  of  land  to  B,  made  him  a  convey- 
ance and  took  his  bond  for  the  purchase  money,  and  afterwards 
i;  re-conveyed  to  A.  who  entered  into  bond  that  lie  would  con- 
vey to  B,  whenever  the  purchase  money  should  he  paid;  and  it, 
was  further  stipulated  that  ifthe  purchase  money  were  not  paid, 
P.  should  pay  a  certain  rent,  ii  was  held,  that  this  latter  contract 
rescinded  the  first,  and.  that  the  bend  gkien  under  the  first  con- 
tract ■■>  as  discharge,  i  at  law.     Ibid. 

39.  Where  it  appears  from  a  contract,  that  it  was  made  by 
commissioners  on  behalf  of  the  public,  -whether  they  were  com- 
mission',.- f.r  a  county  or  for  the  State,  they  are  not  personally 
bound  by  their  contract.     Dameron  v.  Trvnn,  8  Ired.,  421. 

4n.  Where  there  is  a  contract  for  the  delivery  of  a  certain 
quantity  of  tobacco,  deliverable  at  a  certain  place  and  for  a  cer- 
tain price,  the  purchaser  must,  in  order  to  entitle  himself  to  re- 
cover for  a  breach  of  the  contract,  allege  and  prove  that  he  was 
ready  to  perform  his-  part  of  the  contract.  Cole  v.  Hester,  9 
Ired.,  23. 

41.  Where  A  contracted  to  deliver  to  B  one  hundred  fish 
stands,  of  a  certain  description,  and  upon  tendering  them  B  re- 
eebri  9  fifty,  but  refused  to  receive  the  other  fifty,  because  they 
were  'ii  a  made  according  to  the  contract;  it  wans  held,  that  thjs 
receipt  of  the  fifty  stands  did  not  make  B  responsible  for  the 
other  fifty,  which  were  not  made  according  to  the  contract. 
Freeman  v.  Skinner,  !•  Ired.,  ;'>•_!. 

42.  Tin'  clerk  of  a  district  court  of  the  United  States  furnished 
certain  transcripts  of  reeords  to  a 'collector  of  customs,  wdio  .ap- 
plied for  them  officially, and  as  he  stated,  by  the  direction  of  one 


268  CONTRACT— t 

of  the  auditors  of  the  United  States  Treasury;  and  it  ivces  held, 
that  the  clerk  could  not  hold  the  collector  personally  responsible 
for  his  fees,  but  must  look  to  the  United  States  Government  for 
what  was  due  him.     Broimi  v.  Uatton,  9  Ired.,  319. 

43.  The  construction  of  a  written  instrument  is  a  matter  for 
the  court  and  not  for  the  jury.     Ibid. 

44.  Wheie  one  man  contracted  to  work  for  another  for  six 
months  :it  eigbJ  dollars  per  month,  and  the  hirer  at  the  expira- 
tion of  four  months  refused  to  pay  the  hire  for  those  months, 
alleging  that  he  was  not  bound  to  pay  until  the  expiration  of  six 
months,  upon  which  the  laborer  refused  to  work  any  longer,  it 

',  that  he  was  entitled  to  recover  for  his  four  months  work- 
Dover  v.  Plemmons,  10  [red,  23. 

45.  In  an  action  for  work  and  labor  done  on  the  land  of  an- 
otl  <■ .  it  is  not  necessary  that  the  labor  done  should  have  been 
beneficial  to  the  owner  of  the  land.     Ibid. 

46.  The  constrm  i  contract  is  matter  of  law.  When 
the  terms  are  committed  to  writing  and  are  explicit,  they  pre- 
sent a  question  for  the  court,  but  if  doubtful  and  uncertain  they 
m;'\  be  submitted  to  a  jury  with  proper  instructions.  If  the 
contract  be  vi  rbal,  and  the  parties  dispute  about  the  terms,  that 
is  a  matter  of  fact  for  the  jury;  but  if  there  be  no  dispute  about 
the  terms,  and  they  be  precise  and  explicit,  it  is  for  the  court  to 
declare  their  effect.     Fexper-mnn  v.  Parker,   10  Ired.,  471. 

47.  Where  A  contracted  to  deliver  B  a  certain  quantity  of 
corn,  if  called  for  by  a  particular  day.  and  B  did  not  call  for  it 
until  some  time  afterwai  Is,  ','■  icas  held  that  B  was  not  entitled 
bo  recover  on  the  contract,     Broitm  v.  Hay,  11  Ired.,  222. 

48.  If  A  agree  with  1!  to  furnish  him  with  a  flat  beat  of  a 
certain  description,  by  a  time  and  for  a  price  certain,  A  has  a 
right  to  employ  another  to  do  the  job  for  him,  and  if  the  boat 
be  ft  rnished  according  to  contract  B  is  bound  to  pay  for  it,  how- 
ever much  A  may  make  by  the  operation.  Meadows  v.  Smith, 
Busk.  327. 

49.  Where  the  terms  of  a  parol  agreement  are  ascertained,  its 
construction,  like  the  construction  of  a  written  contract,  is  mat- 
ter of  law  for  the  court.     Rkodes  v.  Chesson,  Bush,  336. 

.r)U.  A  slave  was  hired  for  a  year  to  A,  upon  an  agreement  that 
he  was  not  to  be  carried  out  of  the  county,  but  A  did  order  him 
out  of  the  county,  and  while  on  his  way,  he  was  directed  by  his 
owner  not  to  go  out  of  the  county,  unless  he  was  compelled  by 
force;  and  it  uyts  held  that  the  stipulation,  not  to  take  the  slave 
out  of  the  county,  was  not  a  condition  precedent,  but  an  inde- 
pendent agreement  and  the  owner  had  no  right  to  interfere  and 
stop  the  slave  from  being  carried  out  of  the  county.  Sample  V. 
Bell  Bush,  338. 

51.  Where.  A  agreed  to  build  for  B  a  good  sawmill,  B  under- 
taking to  cut  the  mill  race,  and  the  mill  was  worthless  in  conse- 


CONTRACT.— I  269 

quenee  of  a  defect  in  the  rare  below,  and  whore  it  appeared 
further  that  A  had  undertaken  to  ascertain  the  level,  and  desig- 
nate the  position  of  the  race,  and  had  done  it  so  unskillfully  as 
to  produce  the  defect  in  question,  it,  was  held  that  A  hada  reason- 
able time  to  have  the  error  corrected,  and  he  hada  right  to  have 
such  correction  made,  provided  he  could  show  that,  as  proposed 
by  him,   ir    would  remedy  the   defect.      Byerhy  v.   Ji,  | 

Jones,  35. 

:<■!.  Where  parties  enter  into  an  express  and  spi  cific  eoi 
which  is  neither  general   nor   doubtful,  I 

resorted  to  in  ascertaining  its  meaning.     Cooper  v.  Pu  I 

Jones,  141. 

53.  Where  the.  terms  of  a  contract  of  hiring  were  that  the 
slave  was  not  to  be  taken  out  i  mty,  nor  to  be  employed 
upon  water  except  a1  the  h  'er's  risk,  and  the  slave  was  put  to 
making  shingles  out  of  the  county,  and  died  during  tin-  rear 
from  ordinary  sickness,  withoul   any   neglecl 

if  was  Itdd  '     was  nevertheless  liable  for  the  value  of  the 

slave,      Bell  v.  BoiCi     .    1   JoD    -.  311). 

54.  A  contract  on  hiring  a  slave  from  another,  "to  guara  ity 
against  loss,  accident  or  misfortune,  rom  a  habil  of  in- 
toxication in  the  slave,"  embra  e  :  theca?  ■  i  f  suicide,  bv 

ing  in  a  fit  of  intoxication.      Ch'eet   \     Dibble,  1  Jones,    < 

55.  Where  the  contract  between  the  plaintiff  and 
was  that  the  former  was  to  come  within  a  few  days  with 

and  surety  for  the  hire  of  a  slave  for  the  next  yi  ar,  and  h>   post- 

rt  of  the  underta 
ae  in  the  la  si  week  in  J  to  the  LOth  Jau 

was  held  thai  the  defendant  was  not  bound  to  keep  :i, 
him    any   longer,   and    il     sva      no    fault    to    hire-    him   then    to 
another  person,      Warters  v.  Herring,  2  Jones,  4ii. 

56.  A  contract  "to  pay  for  hree  slav  s  ten  dollars  per  ru  mtli, 
until  we  finish  our  contracts  on  the  railroad,"  is  an  entire  con- 

i  a  performan  e     >  a   pari   of  it,  the  oti  ner  of 

ih  ■  slave  tal  us  them  away  withoul  I ;  nt  of  the  hirers,  he 

cann  lie  til  ives  worked  with 

'    :  ■■',.  2  Joni  8, 

.'•7.   Y\  here  one  contracts  to-sell  and  deliver  a  certain  qui 
of  pork,  and  after  delivering  a  part  refuse     to  d   ih    r    I   i  re- 
mainder, o1    reco         br   the   part   delivered.     Dulav 
Coivles,  2  Jones,  454. 

58.  A  >  i  in  a  contra      I  hire  of  ;!  slave,  that  he 

"was  not   to  be  employed  on  water,"  is  not   broken   by  sending 
the  Blave  to  water   horses  at  a  shallow  part  of  a  deep  stream, 
With  instructions  aot  to  ride  into  deep  water,  though  he  did  ride 
tnto  deep  water,  and  was  thereby  drowned.     Madre  v. 
3  Jones,  1. 


270  CONTRACT.— I. 

5Sb  Wkere  A  agreed  to  pay  a  mechanic  $100  of  the  deficiency 
in  a  public  fund  lor  building  a  school  house,  provided  eighfeothgr 
responsible  persons  sigwed  the  agreement,  and  eight  other  per- 
sons did  sign  the  agreement  and  paid  their  shares,  it  was  held, 
that  after  tin'  trustees  at  the  school  had  received  the  house  for 
which  they  had  contracted,  A  could  not  he  heard  to  objeet  that 
the  work  was  not  done  according  to  the  contract,  hut  was  .bound 
under  his  agreement  to  pay  the  sum  he  had  promised.  Pipkin 
v.  Robinson,  3  Jones,  152. 

GO.  Where  the  terms  of  a  contract  are  that  A  shall  cut  a  mill, 
race  of  certain  dimensions,  within  a  certain  time,  tor  which.,  he  is 
to  receive  a  certain  sum,  lie  cannot  recover  any  thine-  either  on 
tlie  special  contract,  or  upon  a  quantum  meruit,  unless  he  aver 
and  prove  an  entire  performance.  Brewer  v.  Tysor,  3  Jbnesj. 
180. 

61.  Where  i'.  agreed  "to  receive"  the  draft  of  a  merchant  who 
had  bought  A's  tobacco,  and  to  credit  a  bond  which  he.  B,  had 
on  A.  when  I  he  money  she-uld  be  received,  but,  without  any  fault 
on  B's  part,  the  merchant  declined  to  give  the  draft,  and  two 
months  afterwards  became  insolvent;  it  was  held,  that  the  con- 
tract did  not  make  it  the  duty  of  &  "to  procure  tin-  draft  and 
credit  the  hood,"  and  that,  therefore,  he  was  not  responsible  for 
not  having  done  so.      Watkins  v.  .lames,  :\  Jones,  lib"). 

62,  Where  v  agreed  with  15  that  if  B  would  furnish  hk-ri  with 
evidence,  in  a  suit  then  pending,  to  prove  a  particular  iact,  he 
would  pay  him  $100,  and  B  furnished  him  with  a  deposition 
which  proved  (lie  desired  fact,  but  the  commission  under  which 
it  was  taken  was  not  returned  with  it,  so  that  it  could  not  bo 
used;  H  was  held,  that  15  had  not  performed  his  part  of  the  con- 
tract, so  as  ro  entitle  him  to  recover  on  it.  Williams  v.  Thompson, 
.">   Jones,  363. 

Ii;5.  Where  one  agreed  to  pay  a  debt  when  an  estate  bid  been 
settled  up,  it  was  held  that  the  person,  to  whom  the  debt  was 
to  be  paid,  had  a  right  to  recover  at  lie  end  of  two  yi  irs  from 
the  time  when  administration  was  tafeeja  on  the  estate,  unless 
the  debtor  can  show  that  it  was  not  then  settled  up.  Ingram  v. 
Ingram,  4  Jones,  188 

64.  Where  the  vendor  ;f  timber  tr.'-rs,  living  twenty-two 
miles  from  the  proposed  Vendee,  offered  in  writing  t®  sell  him 
the  trees,  provided  he  would  comply  with  certain  terms,  and  he 
did  not  comply,  nor  offer  to  comply  with  the  term;-.,  until  the 
expiration  of  twenty  days,  it  was  held  that  as  the  vendor  was 
hound  by  his  offer  in  writing,  and  the  vendee  not  bound,  twenty 
days  was  an  unreasonable  delay,  and  the  plaintiff,  therefore. 
could  not  sue  upon  the  contract  upon  the  defendant's  refusal  to 
comply  with  it.     MizeU  v.  Burnett.  4  Jones,  219. 

65.  Where  a  right,  under  a  contract  depends  npon  the  per- 
formance of  a  condition  pi-eceder/t,  the  party  cannot  recover  un- 


CONTCACT.— I.  271 

loss  tin'  conditio*  be  performed,  evert  though  the  perftyflmanoe 
has  become  impossible  by  the  act  of  God.     Ibid. 

66.  Where  there  is  an  entire  executory  contract,  eS»I  the 
plaintiff  has  performed  a  part  of  it.  and,  without  legal  excuse, 
and  against  the  consent  of  the  defendant,  has  refused  to  perform 
the  remaining  part,  he  cannot  recover  anything  for  toe  part 
performed.     NihUtt  v.  Herring,  4  Jones,  262. 

<i7.  When  the  words  of  a  contract  are  so  obscure  that  the  court 
cannot  tell  what  the  meaning  is,  the  court  should  not  leave  it  to 
tin;  jury  to  guess  at  the  meaning,  but  should  instruct  them  that 
the  contract  was  a  nullity.  Silverthorne  v.  Fowle,  4  Jones, 
362. 

68.  Where  some  of  the  terms  of  a  contract  are  words  of  art, 
t.  •  I xplained  by  experts,  the  jury  must  find  from  the  testi- 
mony of  such  experts  what  the  meaning  of  the  technical  terms 
is,  but,  that  being  ascertained, the  court  must  put  a  construction 
upon  the  contract.  Where-there  are  no  such  terms  of  art,  the 
■whole  construction  is  a  matter  for  the  court.     Ibid. 

69.  Where  ;:  was  agreed  between  A  and  B,  that  if  the  former 
would  sell  the  latter's  'and  for  more  than  $1,500  he  might  have 
ihi  excess,  ami  he  sold  it  for  $1,800,  a  small  part  in  cash  and 
the  bal  nice  o  i  a  i  redit,  and  took  bonds  for  the  purchase  money, 
which  I!  accepted,  and  gave  his  bo»d  to  make  title  upon  their 
payment,  it  was  held  that  A  was  not  entitled  to  claim  the  excess 
until  the  bonds  became  due  and  B  had  a  reasonable  time  to  col- 
lect them.     Joice  v  Bokanan,  4  .lines,  364. 

70.  Where  the  owner  of  certain  vessels,  then  on  their  way 
from  New  York,  to  this  State',  proposed  to  A,  that  if  he  would 
ship  his  corn  on  them,  he  would  guaranty  a  certain  price  for  it. 
which  A  did  not  accept  at  the  time  ;  it  icas  held  that  the  owner 
of  the  vessels  in  question  was  not  hound  by  his  proposal,  as  it 
was  not  accepted,  and  he  certainly  was  net  bound  to  guaranty 
the  price  oi  corn  sent  by  A  on  another  vessel  of  his.  S}  rutU 
v.  Trader,  3  Jones  39. 

71.  Where  A  byacontrct  with  B  licensed  him.-.to  get  timber 
on  his,  A's.  land, which  was  to  he  hauled  to  a  specified  place  and 
there  inspected,  but  was  not  to  he  removed  until  paid  for  ;  it 
was  held  that  As  till-  to  the  timber  was  not  changed,  before  it 
was  inspected  and  paid  lor.  and  that  he  was  entitled  to  main- 
tain trover  against  any  person,  who  removed  it  b<  fore  that  time. 
Crea  :/<  v.   McRae,  •"»  Jones  122. 

72.  Where  a  contract  lor  the  performance  of  work  is  divided 
into  three  separate  and  distinct  parts,  there  is  nothing  to  prevent 
the  plaintiff  trow  recovering  for  two  parts  of  the  work  which  he 
lias  completed  according  to  the  contract,  though  the  third  part 
remains  unfinished.     Brevier  v.  Tysor,  5  Jones  173. 

73.  A  contract,  to  pay  the  debts  of  a  third  person,  cannot  lte 
sued    a  to   reeover  each  debt  separately,  but  one  action  should 


272  CONTRACT.— I. 

be  brought  to  recover  the  whole  together.     Briiton  v.  Thmilkill, 

5  Jones,  329. 

74.  Where  the  hirer  of  a  slave  agreed  with  the  owner,  that  he 
should  work  all  flit- time  {(rider  a  white  overseer,  and  the  con- 
tract was  broken  by  putting-  the  slave  to  work  with  other  slaves 
without  a  white  ove  seer  during  which  time  the  slave  was  killed 
but  in  what  manner  was  not  known,  '  w  is  held,  thatit  devolved 
upon  the  defendant  to  show  that  it  resulted  from  a  remote  and 
unforeseen  cause,  otherwise  the  hirer  was  responsible  tin- the 
value  of  the  slave.     Knox  v.  North  Carolina  Bailroad  (  'ompany, 

6  Jones,  415. 

75.  Where  a  party  had  agreed  to  deliver  a  ■-  rtain  quantity  of 
pork,  and,  having  delivered  a  part,  refused  to  deliver  the  n  due, 
it  was  held,  that  he  could  not  recover  for  the- part  delivered. 
Bala  v.  Cowles,  7  .lone,-.  290. 

76.  What  amounts  to  an  abandonmenl  of  a  contract  by  one 
party,  so  as  to  enal  le  the  "i1  ■  c  parry  to  sue  on  the  common 
counts  in  assumpsit  for  the  value  of  a  par;  performance,  is  a 
matter  of  law  for  the  court,  and  it  is  error  to  leave  it  to  the 
jury.     Ibid. 

77.  Where  A.pn  i  I  in  I  ipaya  i  ertain  sum,  "after 
deducting  a  bill  of  expenses  v.  hich  B  had  against  him  and  J.  P. 
F.  &  Co.,"  it  was  held  thai  a  deduction  was  to  b<  made  for  any 
bill  of  expenses  which  B  had  against,  or  had  incurredfor  \  and 
J.  P.  F.  &  Co.,  and  thatit  was  not  material  whether  R  intended 
to  charge  A,  who  was  his  brother,  for  those  expeuses,  or  ani  part 
of  them,  or  not.     Foster  v.  i!/i7fe,  7  Jones,  (506. 

78.  Where  a  slave  was  hired  by  parol  for  a  certain  sum.  and 
before  the  expiration  of  the  term,  the  owner  took  the  slave  out 
of  the  possession  of  the   hirer  against  his  will,  an.; 

the  hirer  brought  an  acti  m  of  trover  against  die  owner,  and 
recover  ad  received  he  value  of  the  slave's  services  for  the 
unexpired  part  of  the  term,  it  was  held,  in  an  action  light  by 
the  ow  in  r  a  jain  i  the  hirer  to  recover  the  price  stipulated,  that 
the  hirer,  having  go1  the  full  benefrl  of  the  contract,  could  not 
treat  it  a  re  cinded,  and  th  rebj  avoid  his  obligation  under  it. 
Odom  v.  Bryan,  8  Jones,  211. 

7i).  Where  a  plaintiff  declared  upon  i  |  ecial  contract  to  pro- 
vide sla  res,  hire  1  to  worl     mar;  ilroad,  with  good  ac  - da.- 

tions,  also  on  the  imp]        i  aent  to  pro   id'    .hem 

with  ordinary  accommodations,  it  was  hid  thai   the  ■■   oi 

slaves,  in  the  dead  of  winter,  in  huts  built  of  poles  aud  railroad 
sills, -without  door  shutters  and  without  chinking  in  th<  g  icks, 
which  were  lai  e,  ai  I  which  huts  were  proved  to  be  inferior  to 
ordinarily  used  for  such  purposes  on  railroads,  was  a  breach 
of  contract  as  alleged  in  both  counts,  and  entitled  the  plaintiff 
to  recover.     Lane  v.   Washington,  8  Jones,  248. 

80.   Where  the  defendant  entered  into  a  written   contract  as 


CONTRACT.— L-It  273 

follows,  "I  wil!  stand  as  security  for  A  for  8125  until  25th 
instant,  and  if  \  e  fails  to  make  payment  by  that  time,  and  you 
(the  plaintiff)  fail  in  commencing  suit  against  both  of  us  at 
the  time  above  specified,  1  will  then  be  released  as  security. 
January  7th,  I860,"  and  it  appeared  that  this  was  addressed  to 
the  plaintiff  upon  his  selling  some  beef  cattle  to  A,  it  toas  lield, 
that  the  plaintiff  could  not-  sue  A  and  the  defendant  before  or 
on  25th  day  of  January,  I860,  and  that  it  was  sufficient  if  he 
did  it  in  a  reasonable  time  afterwards.  Glbls  v.  /(  Uhiams,  8 
Jones,  31)1. 

81.  In  the  ease  just  above  stated,  it  appearing  that  the  plain- 
tiff had  issued  a.  writ,  which  was  served  on  A  and  the  defendant 
and  returned  to  the  term  of  the  county  court  next  after  the  25th 
January,  1860,  and  the  plaintiff  was  non-suited  on  the  motion 
of  the-  defendants,  because  he  did  not  appear  by  counsel  or  oth- 
erwise, whereupon  he  immediately  issued  another  writ,  it  was 
held,  that  the  suit  was  in  reasonable  time  and  was  sustainable 
Ibid. 

■  (S2.  Where  the  proprietors  ofa  school,  on  being  applied  to  by 
a  parent  to  receive  his  sons  as  pcholars,  informed  him  of  their 
willingness  to  receive  them,  and  sent  him  a  statemnt  of  their 
terms,  one  of  which  was,  "when  a  place  is  engaged,  the  session's 
charge  is  considered  due,  unless  the  boy  be  prevented  from 
coming  by  the  act  of  God,"  ami  the  father  expressed  his  aaeep- 

tan f  the  terms  but  afterwards  sent  his  sons  to  another  school 

i\  was  held,  that  lie  was  liable  to  pay  for  the  beard  and  tuition  of 
his  sons  for  one  session,  upon  tin.'  proprietor's  showing  tie  li- 
ability and  willingness  to  comply  with  the  contract  on  their 
part.     Bingham  v.  RicJiardson,  1  Winst.,  217. 

>  ote— See  (Constitution — Acts  which  have  been  declared  con- 
stitutional, 4.)  (Constitution — Acts  which  have  been  declared 
unconstitutional,  2-3-7-9-1 1.)  (Constitution — Construction  of 
vane  is  clauses  of  the  constitution,  23-27.)  (Fishery,  <i.)  (Idiots 
and  Lunatics,  :i. ) 

II.   OF  THE  SALE  OF  PERSONAL  CHATTELS. 

1.  Where  a  sale  is  made  at  an  agreed  price,  and  the  articles 
delivered  do  not  correspond  in  nature  or  quality  with  these  con- 
tracted for,  the  vendee  has  a  right  to  rejed  the  articles  alto- 
gether; but  if  he  do  not,  and  there  is  no  warranty,  the  ordinary 
presumption  is  that  he  waives  his  objection  to  them,  because  of 
their  not  corresponding  with  the  contract.  If  from  the  nature 
of  the  transaction,  it  be  not  practicable  for  him  to  reject  the 
articles  altogether,  or  where  they  have  been  used  before  the 
discovery  of  the  discrepancy,  then  it  has  been  held  that  he  may 
reduce  the  vender's  claim  to  a  quantum  nil  hunt  or  to  what  the 
articles  are  actually  worth.     But  where  the  vendee  receives  the 

is 


274  CONTRACT.— II. 

very  article  for  which  he  contracted,  and  there  was  no  .stipula- 
tion with  respect  to  its  qualities,  and  these  were  as  well  known 
to  him  as  to  the  vendor,  the  rule  of  caveat  emph  r  applies,  and 
he  is  bound  to  fulfill  his  contract  by  paying  the  stipulated  price 
Caldwell  v.  Smith,  4  Dev.  and  Bat.,  64. 

2.  If  parties  agree  as  to  the  terms  of  the  sale  of  a  chattel,  the 
property  of  the  chattel  wiU  no    I  ted   in  the  vendee,  where 

pears  that  there  was  no  deliver-;  of  the  chattel,  no  i 
paid,  nor  any  acceptance  by  the  vendor  of  the  vendee's  i 
or  notes,  in  liexi  of  earnest,  or  as  a  security  for  the  price.     j{/<  a 
v.  <;,  rtry    '  Dev   i      I         ,117. 

3.  If  a  seller  receive  from  the  purchaser  the  note  of  a 
person,  at  the  time  of  the  sale,  (such  note  not  being  forged,  and 
there  being  no  fraudulent  misrepresentation  on  the  pari  ofthi 
purchaser  as  to  the  m  maker, )it  is  di  emed  to  have 
been  aci  i  |  ted  by  the  .-■  Il<  r  in  sati  faction,  unless  the  contrary 
be    xpressly  proved      '              i   ■. .   Wall,  A    Dev.  and  Bat.,  ill. 

4.  When  tl  them  av  ay,  it  amounts 
to  a  delivery,     tslay                         Dev.  and  Bat.,  160.  . 

5.  Where  the  owner  of  a  lot  of  timbei  met  a  dealer  in  the 
article,  who  enquired  of  him  his  pi-ice  for  it,  and  upon  beii 
formed,  said  he  would  give  it,  but  went  off  without  takn 
account  of  the  timber,  neither  inspecting  nor  measuring  it,  nor 
telling  the  owner  when'  t  i  carry  it  for  measurement  and  deliv- 
ery, and  no1  paying  for  it,  nor  offering  at  anytime  to  make 
payment;  and  in  the  mean  bime  the  owner,  being  infoTined  that 
the  dealer  was  insolvent  and  unable  to  pay,  sold  the  timber  to 
another  person  at  a  higher  rate,  but  afterwards  a<  !  no  pledged 
that  lie  had  sold  to  the  plaintiff,  and  offered  to  pay  him  t] 

.  it  tens  In  Jil,  to  be  proper  for  the  judge  to  leave  it  to  the 
jury,  to  say  whether  there  was  any  contract  of  sale  betwe  m  the 
parties,  or  only  a.  chaff  nditional  agreement  bi 

them,  which  the   defendant,    upon   seeing  the  conduct  of  the 
plaintiff,  was  at  liberty  to  disregard.     Naestedv.i 
and  Bat.,  3 

6.  In  an  action  fo]  I  delivi  :  ■  ictual 
or  constructive,  mi                                the          Is  were  barj 

for,  hut  the  d  !i\  ery  p  the  happening  of  sorm 

or  to  .    :  comp 

the  seller  had  no  ri  for  the  price.     Allman  v.  Davis,  2 

lle.l,     12. 

7.  Where  there  is  a  contract  for  the  sale  of  goods,  although 
the  -ends  may  have  been  put  in  possession  of  the  vendee,  yot  if 
something  still  remains  to  be  done  by  the  vendor  before  the 

ict  is  complel  :   s    to  a      irtain  the  price  oi  indi- 
viduality of  tin                     e  constructive    po  tnd  the 

rty   still   ren                         endor.     Devam  v.    Fui 
bed,  36. 


CONTRACT.— II.  275 

8.  A  party  may  recover  damages  for  a  i  rr-eompliauce  with  a 
parol  contract  for  the  purchase  of  an  article  of  personal  property, 
though  no  earnest  was  paid,  nor  any  actual  delivery  made,  nor 
any  special  time  appointed  for  the  delivery  of  the  article,  or  the 
payment  of  the  purchase  money:  '  It  is  sufficient  if  the  seller 
tender  the  article  sold,  or  is  readj  to  deliver  it  when  the  pur- 
chaser refuses  it:  and  ii  icular  tin  ■  is  fixed  fur  tin.' 
delivi  ry,  or  for  bhepaymenl  of  the  price,  the  law  says  it  must  He 
done  immediately,  or  within  a  r<  asonable  and  convenient 

Hill-H'  :    .   .      In  :l,   233. 

9.  Where  the  pu  ive  the  article  sold,  the 

rescind  the  contract,  or  may  resell  the  article 
!  3ible  for  th  ;  difl 
in  price.     1  ■ 

10.  R.  D.  executed  to  H.  E.  an  instrument  under  seal  in  the 
following  wo  r  date  I  promise  to  pay  H. 

-  dd  horse  to  be  II.  E.'i 
till  paid  '  that  this  wa  a  condil  ioi  al  e  tie  ol 

,  and  ho1   an  a  ■  rom  the 

lie  sel  Ired.,  48. 

11.  Where  an  article  of  raw  n  aterial  «  I  ut  left  in  the 
i            inn  of  the  seller,  an  1  was  afterw  lim,  with  the 

I  into  a  manufactured  article, 
the  purchaser  was  held  to  be  entitled  to  the  article  in  its  new 
state.      Worth  v.  Nbrtharn,  -1  Ired.,  102. 

12.  A  b  I  to  sell  and  deliver  to  V>  280  logs  of  timber, 
to  he  staked  in  the  river  at  or  near  Plymouth,  at  a  plao  to  be 
designated  by  C,  and  delivered  130  logs  and  staked  them  at  the 

ignated.     He  then  gave  notice  that  lie   would  have 
2f6  there  on  the  7th  duly,  if  the  weather  were  favor- 
able; an. 1  en   that  day  the   logs  I    to    Plymouth  and 
i  e  with  th-  I  et  no  notice  was 
given  te  B  or  his                    I    the  logs  were    tin  re.     Five  davs 
afterwards  the-  logs  were  lost  in  a  violent  sti  rm.  and  it  was  lull 
sufficient  delivery  to  entitle  A  to  recover  the 
price  i if  the  timber.      Williams  v.  J  L,  233.. 

13.  An  inspector  of  lumber  in  the  town  of  Wilmington  is,  by 
'  .  trade  in  that   town.  and 

fi  ttasi  f 

Her  to 

was  placed  with   an 

:-r  it  on  a  particular  wharf,  and    b;  b<     ! 

it  on  another  wharf,  and  the  purchaser  infor  Her  he 

Li  there,  an  I  it  ".ms  aft  cidently  de- 

stroyed by  fire,  it  was  held  tint  it  was  n<  I  Bold  and  deli 
that,  con  ,1  I   to  pay  for  it 


276  CONTRACT.— II. 

so  that  the  loss  fell  on  the  seller.      Bide  v.  Browne,  6  Ired., 
401. 

14.  The  plaintiff'  sold  the  defendant  some  cattle  for  $50,  and 
received  therefor  the  defendant's  note  for  $30,  payable  the  1st 
day  nf  January  ensuing,',  and  a  bank  bill  for  $20,  which  was  to 
be  returned,  if  found. not  to  be  good,  and  the  defendant  was  to 
have  credit  until  the  1st  of  January.  The  bank  note  was  re- 
turned, as  also  the  note  for  $30,  which  was  destroyed  by  the  de- 
fendant, who  then  offered  to  pay  $10  and  give  his  note  with 
senility  fur  $40,  payable  1st  of  January  next,  but  the  plaintiff 
refused  to  accept  them;  and  it  was  held,  that  the  plaintiff  could 
not  sue  the  defendant  in  a  quantum  valebat  until  after  the  1st  of 
January.     Gvdger  v.  Fletcher,  7  Ired.,  372. 

15.  A  purchased  a  mare  Ifrom  P>  and  gave  his  note  for  the 
price,  and  at  the  bottom  of  the  note  was  the  following  stipula- 
tion: "It  is  agreed  and  understood  that  a  sorrel  mare,  for  which 
the  above  note  is  given,  is  to  remain  the  property  of  B  until  the 
above  note  is  fully  paid;"  A,  without  having  paid  the  noten  sold 
the  mare  to  I '.  and  it  was  hdd  that  A  had  no  right  to  sell,  and 
that  his  vendee  acquired  no  title.  BaUew  v.  Sudderth,  10  Ired., 
17(1. 

16.  The  doctrine  of  appropriation,  as  constituting  a  delivery 
and  thereby  passing  the  title  to  the  purchaser,  arises  in  cases  of 
the  sale  of  goods  generally,  as  distinguished  from  the  sale  of  a 
specific  chattel;  and  when  a  less  quantity,  out  of  a  larger,  isthe 
subject  ot  tin-  contract,  then  no  property  passes  to  the  purchaser 
until  a  delivery,  for  until  then  the  goods  sold  are  not  ascertain- 
ed.    Brazier  v.  Ansley,  11  Ired..  \'S. 

17.  The  seller  may  appropriate  the  quantity  purchased,  by 
separating  it  from  the  bulk;  but  tin-  appropriation  is  not  com- 
plete until  the  vendee  assents  to  take  the  separated  portion. 
[bid. 

IS.  Personal  property  passes  by  a  sale  and  delivery,  notwith- 
standing an  executory  agreement  to  sell  to  another,  and  the 
receipt  of  a  part  of  the  price.      Wilson  v.  Pur  cell,  11   Ired.,.  502. 

111.  Where  a  person  had  in  store  3,100  bushels  of  corn,  an d 
sold  2,800  bushels  of  it  to  A:  but  the  2,800  bushels  were  never 
separated  from  the  3,100  bnshi  Is.  and  the  whole  was  afterwards 
destroyed  by  fire;  it  was  held  that  the  property  in  the  2,800 
bushels  liad  not  passed  to  A,  because  there  had  been  no  deliv- 
ery, and  therefore  A  was  not  bound  to  pay  the  stipulated  price; 
and  thus  result  follows,  wliafev-er  may  have  been  the  intention 
of  the  parties,  as  to  the  property  passing  presently,  on  the  con- 
tract being  made.      Waldo  v.  Belcher,  11  lied.,  609. 

'JO.  In  an  action  on  an  express  contract  for  the  price  of  rope 
sold  and  delivered,  where  no  price  was  agreed  upon,  the  defend- 
ant can  only  show  what  was  the  market  price  generally,  of  rope 
of  this  kind  at  the  time  of  sale,  but  cannot  show  what  was  the 


ccwmiACT.— n.  277 

real  or  actual"  value  of  the  article  sold,  so  as  to  reduce  the 
amount  which  the  plaintiff  would  be  entitled  to  recover,  below 
the  market  price  at  the  time.     Dickson  v.  Jordan,  12  Ired.  79. 

21.  A  and  B  entered  into  the  following  agreement  in  writing: 
"Sold  to  B  one  gray  filly  for  115  bushels  of  corn,  which  the 
said  filly  stands  good  to  the  said  A,  as  his  own  right  and  pro- 
perty until  she  is  paid  for,"  which  was  signed  and  sealed  by  A; 
and  it  loasheld  that  the  legal  title  to  the  mare  still  remained  in 
A,  and  that  the  sale  was  only  conditional.  Part  is  v.  Roberts,  12 
Ired.,  268. 

22.  When  property  bargained  for  is  delivered,  an  action  for 
the  price  agreed  upon  cannot  be  defeated,  except  in  cases 
where,  if  the  money  had  been  paid,  it  might  be  recovered  back 
in  an  action  for  money  had  and  received.  There  must  he  a  total 
failure  of  consideration;  as,  when  the  property  is  retained  by 
mutual  consent,  or  is  never  delivered,  or  a  counterfeit  bill  is  re- 
ceive'!, an  action  forthe  price  agreed  to  be  paid  may  be  defei  ted  : 
but  otherwise  if  the  property  be  delivered,  although  it  turns  out 
to  be  unsound  and  of  no  value;  or  if  the-  lull  is  genuine,  though 
upon  an  insolvent  bank.  McEntyre  v.  McEntyre,  12  Ired., 
299. 

23.  A  bought  of  B,  a  distiller,  three  humsfoed  barrels  of  rosin,. 
to  be  delivered  "when  called  tor  within  the'  week  next  after  the 
purchase,"  and  paid  for  the  same.  Within  the  week  B  manu- 
factured, and  had  on  hand,  at  his  distillery,  more  than  the  above 
quantity  of  rosin,  but  A  did  not  call  for  it  within  that  time,  and 
afterwards  it  was  together  with  the  distillery,  consumed  by  tire; 
it  was  Jield,J?rst,  that  A  was  bound  to  call  for  the  rosin  within 
the  time  agreed  upon;  secondly  that  B  was  not  bound  to  set 
apart  for  A  any  particular  three  hundred  barrels,  aa  -I.  thirdly, 
that  A  having  failed  to  perform  his  part  of  tfee* contract,  the  ro- 
sin remained  at  his  risk  and  he  mttsl  bear  the  loss;  and,  there- 
fore, he  could  not  reeover,  either  the  value  upon  the  contract, 
or  the  price  on  account  for  money  had  and  received.  WiUard 
v.  Perkins,  Busb.  253. 

24.  Where  A,  purchased  a  horse  to  be  returned  at  the  end  of 
two  days,  if  he  did  not  answer  the  description  given  of  him, 
and  the  two  days  elapsed  without  the  horse  being  returned;  it 
\pas  held,  that  the  contract  was  absolute,  and  that  A  could  not 
discharge  himself  from  the  liability  to  pay  the  price,  by  showing 
that  the  horse  was  not  as  good  as  had*  been  represented.  Moore 
v.  Piercy,  1  Jones,  131. 

25.  A  contract  to  sell  all  the  eor.i  in  a  certain  mill  house  at 
two  dollars  and  a  half  per  barrel,  and  a  payment  of  a  part  of 
the  money,  vest  the  property  in  the  buyer,  so  that  he  can  sus- 
tain an  action  of  trover  for  it.  though  aot  measured  out  to  him. 
Morgan  v.  Perkins,  1  Jones,  171. 

26..  A  agreed  to   sell  and  deliver  to   B  a  quantity  of  corn  at 


278  CONTRACT.— II. 

• 
his  farm  in  another  county,  upon  B's  sending  for  it,  but  nothing 
was  said  as  to  the  time  and  manner  of  payment  B  sent  a 
vessel  for  the  corn,  hut  sent  no  money,  and  did  not  give  to  his 
agent  who  went  for  it  any  instruction  as  to  the  payment,  nor 
did  he  in  any  way  communicate  with  A  upon  that  subject.  A 
denied  the  contract  and  refused  to  deliver  the  corn;  and  if  was 
heltl,  that  A's  denial  of  the  contract  did  not  release  B,  from  the 
necessity  of  showing  that  he  had  the  money  ready  to  pay  for 
the  corn,  though  lie  wa^  released  from  the  necessity  of  showing 
an  actual  tender  of  it.     Grandy  v.  McCleese,  2  Jones,  142. 

27.  Where  it  was  agreed  between  A  and  B,  that  B  was  to 
sell  and  deliver  to  A  a  quantity  of  corn  at  a  given  place  and 
price,  "whenever  called  for,"  it  was  held,  that  no  action  would 
lie  for  the  non-delivery  of  the  corn,  if  it  appeared  that  no  offer 
had  been  made  to  pay  tin-  price,  ami  that,  when  it  was  sent  for, 

the  agent  to  receive  it  had  i loney  with  which  to  pay  for  it, 

and  it  teas  held  further,  that  B's  denying  A"s  right,  upon  an  un- 
tenable  ground,  did  noi  Believe  him  from  the  necessity  of  show- 
ing his  ability  and  readiness  to  perform  his  part  of  the  contract. 
Grandy  v.  Small,  3  Jones,  8. 

28.  Where  upon  a  contract  for  the  purchase  of  corn,  the  pur- 
chaser in  due  time  demanded  the  .article,  saying,  "I  have  the 
money  here  with  me  to  pay  for  it,"  and  is  able  to  prove  that  he 
had  some  money,  but  none  was  produced,  and  nothing  further 
was  said  about  the  money,  as  the -vendor  refused  to  deliver  the 
corn,  saying  that  he  had  mad''  another  disposition  of  it;  it  was 
held  that  there  was  some  evideuoe  to  be  left  to  the  jury  of  the 
purchaser's  ability  and  readiness  to  pay,  and  that,  under  the 
circumstances,  he  was  not  hound  to  tender  the  money.  Burbank 
v.   Wood,  3  Jones,  30. 

29.  Where  A  contracted  to  soil  and  deliver  to  B  a  certain 
number  of  bags,  capable  of  holding  two  bushels  each,  at  a  cer- 
tain price,  and  did  deliver  to  B's  agent  the  hags,  though  noi  ol 
the  proper  size,  and  they  were  rilled  with  peas  and  sewed  up? 
but  sxor  eight  days  aiti  rwards,  B  seeing  the  bags  for  the  first 
time  and  finding  that .'thej  were  too  small,  had  them  emptied 
and  sent  back  to  A,  who  refused  toreceive  them;  it  was  held  that 
A  could  not  recover  for  the  bags,  either  on  the  express  agree- 
ment or  on  the  common  count;  for  that  the  use  which  a  vendee 
makes  of  an  article  sold  to  him,  to  entitle  the  vendor  to  recover 
on  the  common  count,  must  be  a  substantia]  and  beneficial  and 
not  a  mere  temporary  use.      Waldo  v.  Halsey,  3  Jones,  107. 

3Q.  Where  A  agreed  to  deliver,  on  a  certain  day.  a  horse  which 
he  had  sold  to  B,  but  before  the  day  sold  it  to  another,  and 
therefore  did  ma  deliver  it  at  the  time  appointed,  it  was  held 
that  B  was  entitled  to  maintain  an  action  against  A  for  the 
breach  of  the  contract,  without  averring  or  proving  his  readi- 
ness and  ability  to  pay  the  money,  the  wrongful  act  of  A,  in 


CONTRACT— II.  279 

selling  the  horse  to  another  person,  having  excused  him  from 
making  such  averment  and  proof.  Harris  v.  Williams,  3 
Jones,  483. 

31.  Where  a  party  made  a  bill  of  sale  for  personal  chattels  in 
the  ordinary  form,  and  there,  was  a  parol  agreement  at  the  same 
time  that  the  articles  should  be  delivered  on  a  certain  day,  which 

:  done,  yet  it  w  is  h  '  I  that  the  title  to  the  chattels  passed 
from  the  delivery   of  the   bill   of  sale.  I 

Jones,  168. 

32.  Where,  in    payment    for   persona] 

la  bond  without  recourse,  bhep  ■  isenthaving 

cut  off  the  name  of  the  surety,  .    d  that  whether  the  <   it- 

ting  off  the  surety's  name    made   the  bond  void  or  not,  the 

'  of  it  to  tin-  vendor  was  a  valid  consideration  for 

the  purchase.     Ibid. 

33.  Where  a  cabinet  maker  agreed  with  a  j  -make 
an  article  of  furniture  and  deliver  i1  a  debt, 
and,  ait  r  the  article  was  '-part- 
nership wit  a  a  iotl  r,  ■!■'•  ',  two  finis!  :  livered  it,  it 
was  I  Id  thai  the  firm  had  no  right  to  make  a                   ge  and 

i   price  of  the  article,  hut  tint  it  v.         abjeel  to  the 
terms  of  the  original  special  contract.     White  v.  Pool,  4  Jones,  293. 

34  "\\  bere  one  contra'  I   and  deliver  an  article  at  a 

and  place,  to  I  paid  for  on  delivery,  and  before  and 
at  the  specified  time  the  vendor  refused  to  deliver  the  article,  if, 
was  held  that  the  n  izsal  I  pensed  with  a  tender  of  the  price  bj 
the  vendee,  yet  in  an  action  by  him  for  the  breach  of  the  contract 
he  was  bound  to  aver  and  prove  readiness  and  al  ility  to  pay,  at 
the  time  8nd  L     Grandy  v.  Small,  5  Jones,  50. 

35.  Where  the  purchaser  of  an  article  is  bound  by  the  con- 
tract to  name  a  time  for  the   !  (en  notice  and  r 

i  so,  disavowing  the  contract  in  toto,  the  seller  on 
showing  that  he  has  the  article  at  home  ■  iin  an  action 

for  a  breach  of  the  contract.      !  ,5  .  5(5. 

of!.  Where  one  contracted  for  a  lot  of  corn  to  be  delivered  cm 
■in  day.  and  in  p;  r  delivered,   without  en- 

dorsement, a  note  on  a  third  person  then  in  good  credit,  but  who 
was  in  truth  insolvent,  and "         I  -  notoriously  so  before 

>.  fixed  for  the  delivery  of  the  corn ;  it  \  that  the 

loss  fell  on  the  person  who  tool    tl te,inthi   abs<         •.  prooi 

that  the  seller  knew  of  the  the  n        r.     Long  v. 

Spr-   iff,  7  J    i€s,  96. 

37.  W!a  re  the  plaintiff  bought  and  paid  far  a  lot  of  corn,  to 
be  di  livered  cm  a  certain  day,  bu1  failed  to  apply  for  it  at  that 
time,  and  the  vendor  afterwards  resold  it  ;  it  was  held,  that  the 
plaintiff  might  recover,  upon  a  count  for  money  had  and  re- 
ceived, tli"  price  received  by  the  defendant  on  such  resale, 
although   the  corn   Lad  remained  in  bulk  vrith  other   corn,  and 


280  CONTKACT.-JT.-III. 

was  not  set  apart,  nor  identified  as  the  property  of  the  plaintiff. 
Ibid. 

See  (Evidence — Parol  evidence,  when  admissible,  45.)  (Guar- 
anty, b'-9.)  (Interest,  1-10.)  (Joints  Tenants,  5.)  (Trespass 
— Of  trespass  quare  clausum  fregit,  20.)  (Trover — When  it 
will  lie,  5.) 

III.       CONTRACTS,    AS    AFFECTED    BY    THE    STATUTE    OF    FRAUDS. 

1.  Executed  contracts  are  not  within  the  act  of  1819,  relating 
to  contracts  for  the  sale  of  land  and  slaves.  Choat  '<■  Wrigld,  2 
Dev.  289.     (See  Rev.  Code,  ch.  50,  see.  11.) 

2.  A  sale  of  a  slave  accompanied  by  a  delivery  is  valid  and 
transfers  the  title,  although  no  bill  is  executed,  nor  any  memor- 
andum of  the  contract  signed  by  the  parties  tin  reto.     Ibid. 

3.  A  contract  for  the  sale  of  a  slave,  accompanied  with  posses- 
sion by  the  vendee  arid  an  agreement  to  pay  accepted  by  the 
vendor  as  money,  is  an  executed  contract,  and  therefore  valid, 
nothwithstanding  the  statute  of  frauds.  I'pps  v.  McLemore,  3 
Dev.,  345, 

1.  A  promise  by  A  to  pay  the  debt  of  a  third  person,  on  -lis 
being  discharged  from  custody^  is  not  within  the  aid  of  L826 
there  being  a  new  and  original  consideration  moving  between 
the  parties.     Cowper  v.  Glvambers,4  Dev., 261. 

5.  The  aol  of  1819,  to  make  void  parol  contracts  for  the  sale 
of  land  and  slaves,  does  not  require  that  the  consideration  for 
the  contract  should  be  set  forth  in  the  written  memorandum  of 
it.     Dliller  x.  Irvine,  1  Dev.  and  Bat.,  103 

6.  A  guaranty  of  a  note,  upon  an  assignment  of  it,  is  not  an 
engagement  to  pay  the  debt  of  another,  within  the  statute  of 
frauds.     Adcock  v.  Fleming,  2  Dev.  and  Bat.  225. 

7.  A.  being  indebted  to  B,  agreed  by  parol  to  sell  to  the  latter 
his  equiti  ble  interest  in  a  tract  of  land,  which  1!  was  x<<  resellj 
and,  after  retaining  the  amount  due  to  him,  was  to  pay  to  .V  the 
surplus  of  price  he  might  receive  beyond  such  debt,  lb  accord- 
ingly conveyed,  and  B  resold  at  an  advance,  and  then  refused  to 
account  witti  A  fir  such  advance,  it  ten*  held  that  this  vontract 
of  B  was  not  one  which  came  within  the  provisions  of  the  act, 
making  void  parol  contracts  for  the  sale  of  lands.  Massey  v. 
Holland,  3  [red.,  197. 

8.  A  contract  in  the  following  terms:  "1  passover  the  following 
notes  to  S.  A.  for  value  received,  and  I  agree  to  make  them  good, 
should  any  of  them  not  be  so,"  is  not  within  the  statute  of  frauds. 
It  is  a  debt  of  the  defendant  himself,  arising  upon  a  new  and 
original  consideration  of  loss  to  tin-  plaintiff,  and  benefit  to  the 
defendant,  by  means  of  the  contract  between  these  parties. 
Ash/onl  v.  Robinson,  8  Ired.,  114.    (See  Re-ss.  Code,.ch.  50,  sec.  15.) 

9.  A  sale  of  land  by  a  trustee,  under.  ft  deed,  of  trust,  made. 


CONTRACT.— III.  281 

for  the  purpose  of  satisfying  debts  secured  i\v  the  deed,  is  within 
the  act  "to  make  void  parol  contracts  for  the-  sale  of  land  and 
slaves."  Ingram  v.  Dovodh,  8  Ired.,  455.  iSee  Revised  Code, 
ch.  50.  sec   11.) 

10.  Where  A  has  a  cause  of  action  against  a  person,  and  B 
makes  a  parol  promise  to  indemnify  A,  which  promise  is  su- 
peraddi  d  to  the  claim,  which  A  has  on  his  original  cause  of  action, 
the  statute,  making  void  parol  promises  to  indemnify  against  the 
default.  &c,  of  another,  will  apply.  But  if  there  be  no  debt  for 
which  another  is,  or  is  about  to  be  responsible,  or  if  the  debl  <  ; 
the  other  is  discharged  and  the  promise  is  substituted,  the  statute 
does  not  apply.      Drauglum  v.  Bunting,  9  [red  ,  10. 

11.  Where  one  had  a  claim  against  three  distributees,  on  ac- 
count of  assets  received  from  an  intestate's  estate,  and  they 
jointly  promised  verbally  that  they  would  pay  the  debt,  it  >ras 
held,  that  this  promise  was  void  under  the  statute,  because  each 
of  the  defendants  was  liable  separately  in  proportion  to  the 
assests  in'  had  received,  and  by  this  promise  ea«h  made  himself 
responsible  tor  the  liability  of  the  others.  HiUv.  Doughty,  11 
Ired..  195. 

12.  A.  s. .Id  a  tract  of  land  to  B,  and  gave  him  a  bond  tor  the 
title,  ami  1'..  as  the  price  of  tie'  land,  promised  verbally  to  pay 
§1()()  tu  ('.  to  whom  A  was  indebted;  ami  it  was  held,  that  the 
case  did  not  fall  mnler  the  10th  section  of  the  statute  of  frauds, 
Rev.  Stat.,  ch.  50,  sec.  10,  relating  to  promises  to  pay  the  debts 
of  other  persons,  because  the  promise  was  to  pay  the  debt  oi 
the  very  person,  to  whom  the  promise  was  made.  But  it  came 
within  that  provisi  m  of  the  9tb  section  of  the  statute,  which 
provides  that  all  contracts  to  sell  or  convey  lands,  &C,  shall  be 
void,  unless  such  contract,  or  some  memorandum  or  note  thereof 
be  put  in  writing  and  signed  by  the  party  to  lie  charged  there- 
with, &c;  ami  the',  under  this  section,  th<  verbal  promise  was 
void.  Rice  v.  Carter,  11  Ired.,  298.  (See  Rev.  Code,  ch.  50, 
sec.  11  and  15.) 

13.  A  contracted  to  purchase  from  B  a  tract  of  land  at  a 
stipulated  price,  and  gave  his  written  obligation  to  that  effect. 
Afterwards,  C  agreed  by  parol  to  purchase  A's  interest  in  the 
contract,  and  A  by  endorsement  on  his  obligation  directed  B  to 
convey  to  (';  ;t  washeld,  that  thecontracl  between  A  ami  C  was 
void  by  the  statute  of  frauds,  and  of  course  no  action  could  be 
sustained  on  it.     Simms  v.  KiUian,  12  ired..  252. 

14.  A  parol  agreement? by  one  to  execute,  at  another  time,  a 
covenant  to  convey  to  a  certain  person  title  to  a  tract  of  land, 
is  void  under  the  statute  of  frauds.  Ledford  v.  FerreU,  \i 
Ired.  285. 

15.  Where,  iu  consideration  of  a  promise  to  pay  the  debt  of 
another,  the  defendant  receives  property  and  realizes  the  pro- 
ceeds  thereof,  the  promise  is  not  within  the  mischief  provided 
against  by  the  statute  of  frauds,  and  the  plaintiff  may  recover 


282  CONTRACT.— TIL 

on  the  promise,  or  in  an  action  'for  money  had  and  received. 
But,  it  is  otherwise  where  the  new  promise  is  merely  superadded 
to  the  original  one,  not  substituted  for  it.  Stariy  v.  Hendricks, 
13  Ircd.,  86. 

16.  Parol  agreements  for  any  lease  for  more  than  three  years, 
and  those  for  mining  for  any  term,  though  loss  than  three  years, 
are  void  by  the  statute;  and  a  contract,  to  transfer  such  a  term, 
must  in  like  manner  be  in  writing,  or  it  Avill  be  void.  Ihihs 
v.  Pace,  13  Ired.  279.     (See  Rev.  Code,  ch.  50,  see.  11.) 

17.  A  parol  promise  by  an  administrator  that  be  would  see  a 
debt  of  the  testator  paid,  or  that  lie  jvould  pay  it,  is  void  under 
this  statute  of  frauds.     Smithwich  v.  Shepherd,  4  Joi 

18.  !  Inder  the  statute  of  frauds  a  contract  to  sell  lands,  or  any 
interest  in  lands,  signed  by  the  vendor,  is  binding  upon  him, 
though  the  vendee  may  not  have  signed  the  contract,  and  it 
■  '  inst  him.  Mizell  v.  Burnett,  4 
Jones,  -2VJ.     (See  Rev.  Code,  ch.  50,  sec.  11.) 

lit.  The  contract,  under  the  statute,  Deed  not  harve  been  ori- 
ginally made  in  writing,  provided  eviden  a  of  it  is  afterwards 
put  in  writing  and  signed  by  tin-  person  to  Lie  charged  there- 
with.    Ibid. 

20.  A  contract  to  make  good  certain  notes  on  another  person, 
paid  by  the  purchaser  to  the  seller  of  property,  provided  the 
maker  of  the  notes  was  noi  able  to  pay  them  at  a  certain  future 
day.  is  not  within  the  statute  of  frauds.  Rev.  Code,  eh.  50,  sec. 
15.     Boiuland  v.  RorJce,  4  Jones,  337. 

21.  A  promise  to  pa]  tin  debf  pi  another,  superadded  to  the 
original  debt  which  still  remains  in  force,  is  within  the  statute 
of  frauds,  and  will  not  sustain  an  aetion.  Britton  v.  ThrailkiU, 
5  Jones,  329. 

22.  Where  a  father  promised  the  creditor  of  his  son,  that  if 
he  would  go  to  a  distant  pi;  ce  '  :o  oe  the  bail  of  his  son, 
who  was  in  prison  ivpi  n  a  srhninal  charge,  so  as  to  release  him 
from  imprisonment,  he  would  pay  the  <lebt  which  his  son  owed 
him;  it  mas  held,  that  although  the  service  was  performe  !.  yet 
as  the  debt  against  the  sen  was  still  in  force,  it  was  a,  contract 
within  the  statute  of  frauds,  i  I  fore  void.  Sogers  v.  Ro- 
gers, 6  Jones,  300. 

23.  Where  a  father  pi  raised  e  that  if  he  wouM  go  to  the 
assistance  of  his  son.  who  ra,s  in  prison  at  a  distant  plaee.be 
would  pay  the  expenses  of  the  the  trip,  and  also  tl  e  expensi  8  of 
atrip  lie  had  made  previously  and  nbt  at  the  request  of  the 
father,  and  the  father  did  pay  the  expenses  of  the  last  trip;  U 
was  In'i!  doubtful  whether  the  promise  to  pay  the  expenses  of 
the  first  trip  was  not  within  the  statute'  of  frauds,  but-  whether 
so  or  not,  the  plaintiff  could  not  recover  before  he' had  given 
notice  to  the  father  asto  the  amount  of  such  expenses.     Ibid. 

24.  The1  act,  Rev.  Codfi,  ch.  50,  see.  16,  in  relation  to  contracts 


CONTRACT.— III.-IV.  283 

with  Cherokee  Indians,  applies  as  well  to  contracts  made  by  one 
Indian  with  another,  as  to  those  made  by  an  Indian  "with  a  white 
man.     Lovingood  v.  Smith,  7  Jones.  601. 

25.  Where  the  land  of  one  of  two  sureties,  for  a  third  person, 
was  sold  under  execution  for  the  debt,  and  the  other  surety  bid 
it  off,  whereupon  the  owner  of  the  land  agreed  to  take  an  assign- 
ment of  the  bid  to  him  and  to  pay  off  the  debt;  it  was  held,  that 
it  was  not  at  law  a  contract  to  pay  I  he  lebl  of  a  third  person, 
and  therefore  not  void  by  the  statute  of  frauds  tor  the  want  of 
writing.     Hockaday  v.  Parker,  8  Jones,  16. 

2(i.  Where  a  remainder  in  slaves  was  offered  for  sale  at  auc- 
tion during-  the  continuance  of  the  particular  estate,  when  cer- 
tain written  terms  were  proclaimed  1  y  the  crier,  and  the  defend- 
ant became  the  highest  bidder,  but  refusing  to  comply  with  the 
terms  of  sale,  the  interest  was  sold  again,  it  was  held,  in  a  suit 
against  the  defendant  for  not  complying  with  the  terms  of  the 
gale,  that  as  he  had  not  signed  any  written  memorandum  of  the 
contract  it  was  void  under  the  statute  of  frauds.  Edwards  v. 
EjeUy,  8  Jones,  69. 

See  (Execution — Levy,  sale  and  application  of  the  money 
raised,  28.) 

IV.       VOID    AND    VOIDABLE    CONTRACTS. 

1.  It  does  not  follow  that  a  contract  is  merely  voidable  and 
no1  void,  because  the  rules  of  pleading  require  that  the  n 
by  reason  whereof  validity  is  denied   to  it,  should  be  brought 
legitimo  ordine  to   the   court.     Shober  v.   Eavser,,  4   Dev.   and 
Bat,  91. 

'2.  No  action  can  be  sustained  in  affirmance  and  enforcement 
of  an  executory  contracl  to  do  an  immoral  act,  or  one  against 
the  policy  ot  the  law,  the  due  course  of  justice,  or  the  prohibi- 
tion of  a  penal  statute.  Therefore,  no  action  can  be  sustained 
upon  a  promise  to  settle  an  estate  and  pay  over  the  shares  to 
tlmse  entitled,  without  takingout  letters  of  administration  upon 
such  estate.     Sharpe  v.  Farmer,  4  Dev.  and  Bat.,  122. 

3.  No  distinction  is  nov  recognised  between  an  act  malum  in 
se,  ami  one  merely  malum  prohibitum;  for  the  law  would  b  ■  false 
to  itself,  if  it  allowed  a.  party,  through  its  tribui  Is,  to  derive 
advantage  from  a  contract  made  against  the  intent  and  express 
provisions  of  law.     Ibid. 

4.  An  executory  contract,  the  consideration  of  which  is  contra 

I m  s,  or  against  the  public  policy,  orthe  laws  of  the  State, 

or  infraud  of  the  State,  or  of  any  third  person,  cannot  be  enforced 
in  a  court  of  justice.  Hence,  where  commissioners,  appointed 
to  sell  lands  for  the  State  at  public  auction,  declared,  as  one  of 
the  conditions  of  the  sale,  that  if  the  highest  ladder  did  not 
.comply  with  the  conditions  of  his  contract,  the  next  highest 


284  CONTRACT.— IV. 

bidder  should  have  the  lands;  and  an  agreement  was  made  be- 
tween the  highest  bidder  and  the  next  highest,,  that  the  latter 
should  give  the  former  his  note  for  one  hundred  dollars,  in  con- 
sideration that  the  former  should  not  comply  with  his  bid,  and 
thereby  permit  the  latter  to  obtain  the  land  at  an  under  bid,  it 
was  held  that  such  note  was  void  on  the  ground  of  its  fraudulent 
consideration.     Blythev.  Lovinggood,  2  Ired.,  20. 

5.  A  promise  to  indemnify  another  for  committing  a  willful 
and  wicked  trespass  is  not  binding.  But  where  the  object  is 
apparently  in  furtherance  of  justice  and  in  the  exercise  of  aright, 
and  the  means  are  not  in  themselves  criminal,  and  not  known  to 
tin.'  p  irson  employed  to  lie  wrongful  to  a  third  person,  a  contract 
to  save  harmless  one,  who.  from  good  motives,  did  an  art  for 
his  employer,  which,  contrary  to  his  expectation,  happened  to 
be  an  injury  to  a  third  person,  will  be  enforced.  Ives  v.  .lour*,  3 
Ired.,  538. 

6.  It  being  unlawful  to  remove  a  colored  apprentice  from  one 
county  to  another,  no  action  founded  on  a  contract  for  such 
removal  can  be  supported.     FutriH  v.  Vann,  %  Ired.,  102. 

7.  Where  a  step-father  had  enticed  away  another's  wife,  and 
he  and  the  husband  entered  into  a  written  contract,  by  which  it 
was  stipulated  that  the  former  should  retain  the  wife  and  sup- 
port her;  it  was  held  that  this  contract  was  against  public  policy, 
and,  at  all  events,  tftsat  the  husband  could  rescrnd  it,  by  making 
a  demand  for  the  restoration  of  his  wife,  and  it  this  were  refused, 
he  had  a.  rigid  of  action  for  the  subsequent  detention.  Barbee 
v.  Armstead,  10  Ired..  530. 

o'.  \  person,  who,  on  the  day  o%  or  previous  to,  an  election, 
turns  dies  liquor,  either  at  the  request  of  a  candidate  or  any  other 
person,  with  a  belief  that  such  furnishing  of  liquor  is  for  the 
purpose  of  influencing  the  electors,  cannol  recover  ins  account 
against  the  person  ordering  the  supplii  s,  because  tin-  contract 
is  ag  linst  good  morals,  and  the  purity  of  elections,  and  also  be- 
cause iich  conduct  is  prohibited  by  our  statute  law.  Duke  v. 
Ashbee,  11  Ired.,  112. 

9.  A  contract  by  the  payee  to  endorse  a  note,  which  had  been 
sold  by  him  to  the  plaintiff,  at  less  than  the  sum  called  for  on  it 
face,  is  founded  on  an  usurous  consideration,  and  cannot,  there- 
tore,  be  enforced.     Ray  v.  McMillan,  2  Jones,  227. 

10.  An  agreement  among  I  lie  legatees  of  a  testator  to  settle 
tic  estate  among  fchemselves,  without  the  qualification  and 
action  ot  the  executor,  is  against  law,  and'  no  promise  founded 
upon  such  agreement  can  be  enforced.  Ramsay  v.  Woodard,  3 
Jones,  508. 

1 1.  An  agreement  between  two  persons  interested  in  an  estate, 
the  consideration  of  which  is  not  to  bid  against  each  other  at 
the  administrator's  sale,  is  against  public  policy,  and  void. 
Ingram  v.  Ingrain,  4  Jones,.  188. 


CONTRACT.— IV.— CORON  ER.— CORPORATIONS.  285 

12.  A  note  given  for  the  price  of  a  jackass,  purchased  from  a 
slave,  although  made  payable  to,  and  sued  for  by  the  master, 
was  field  to  be  void,  because  the  contract  was  against  the  policy 
of  the  law.     Love  v.  Brimcfte,  7  Jones,  560. 

See  (Contracts — Construction  of  contracts  and  when  an  action 
will  lie.  8-ii7.)     (Idiots  and  Lunatics  9.) 


CORONER, 

See  (Bonds — Of  official  and  public  bonds,  4.) 


CORPORATIONS. 

I.  Of  corpolations generally .  |    II.  Cf  particular  corporaliodft. 

I.       OF   CORPORATIONS    GENERALLY. 

1.  Where  a  corporate  body  strikes  off  the  name  of  one  of  iti 
members,  without  giving  him  previous  notice  of  their  intention 
to  do  so,  and  affording  him  an  opportunity  of  being  heard  rfl 
his  defence,a  mandamus  to  restore  him  will  be  granted.  Delacy 
v.  Neuse River  Navigation  Company,  1  Hawks,  274. 

2.  It  sir ni9  that  the  >  of  a  corporation  aggregate  is 
not  to  be  considered  co-extensive  with  the  limits  of  the  Sti  te. — 

Yadkin  Nat  mpany  v.  Benton,  l  Hawks,  422. 

3.  Where  a  charter  authorizes,  but  does  not  require,  a  company 
to  strike  oft'  the  names  of  delinquent  subscribers,  and  to  sell 
their  shares,  the  remedy  is  only  cumulative,  and  the  company 
may  still  sue  for  the  instalment  due.  Tar  River  Navigation 
Company  v  Neal,  3  Hawks,  520. 

4.  Where  a  charter  is  granted  to  a  company,  persons,  who  are 
in  the  actual  possession  and  enjoyment  of  the  corporate  rights 
granted,  shall  be  taken  to  lie  rightfully  so  as  against  wrong- 
doers, and  all  others  who  have  treated  or  acted  with  them  in 
their  corporate  capacity;  and  such  will  be  the  case,  even  if  the 
charter  were  granted  upon  a  precedent  condition;  and  the  con- 
dition shall  be  considered  as  performed  as  against  all  persons  ex- 
cept the  sovereign.     Ibid, 

5.  Where,  by  the  charter,  commissioners  are  appointed  to 
ascertain  the  performance  of  a  condition  precedent,  and  they 


286  CORPORATIONS.— I 

declare  it  to  have  been  performed,  it  must  be  taken  to  be  trae, 
whether  so  or  not,  as  to  all  except  the  sovereign;  and  even,  in 
the  case  of  the  sovereign,  the  acts  of  the  corporators  can  only 
be  examined  in  a  proceeding  directly  againsl  the  corporation,  to 
enquire  into  the  validity  of  the  charter.     Ibid. 

6.  Corporations,  by  prescription  Qt  by  letters  patent,  could,  ac- 
cording to  the  old  books,  act  only  by  deed.  En  modern  times, 
however1,  it  has  been  held  that,  although  they  can  grant  only  by 
deed,  yet  they  may  do  many  other  acts  without  one,  as  appoint 
a  bailiff  or  the  like.  But  corporations,  created  by  legislative 
charter,  which  allows  or  requires  the  ordinary  business  to  be 
done,  not  by  the  corporators  as  an- entire  body,  but  by  a  selecl 
board  as  I  agents  of  the  corporation;  are  not  governed  by  the 
old  ruL      oi  mi   on  lawm  their  mode  of  action,  but  are 

L  and  regulated  by  the  statute  creating  them.     Bm 
Tvn ,  i  ■  ;   I :'  Bat..  306. 

7.  fhi  '  ition  are  no  required,  by  any  rule 
of  the  common  law,  to  act  by  deed  in  behalf  of  their  principals. 
where  they  might  act  for  themselves  by  parol.     Ibid. 

8.  When  i  is   plaintiff,  it  must  on  the  gi 

I    i  a    corporation,  and  when  the  charter  is 

;>         itute,  that  is  done  by  showing  the  statute  and  tin 
persons  indetf  color  of  it  are  in  possession  of  coi 

.  !ses.     Ibid. 

9.  The  nonexistence  of  a  corporation,  acting  as  such,  or  the 
forfeiture  of  its  charter,  can  only  be  adjui  of  the 
soverei^  l.     Such  non-existence  or  forfeiture  cannot,  whei 

is  no  judii    J  i  mtei  nst  it,  declaring  it  null,  be  collates: 

ally  inquired  into  by  individuals.     Ibid. 

10.  Debts  due  t<  i  corporation  must  be  sued  for  in  the  cor- 
I          :  name,  and  cannot   I"   recovered  in  the  names  of  A.  1>., 

td   C.    !>.   and   K.    I\.  direc 
'ttain  v.  Newland,  2  Dev.  and  Bat,  363. 

11.  A  railroad  ation  is  not  i  of  its 
road.     Stat    \ .  Rivt  s,  5  [red-.,  297. 

11.  Only  tl  ate,  which  remains  in  a  cor] 

tb  tion,  reve         »                   il  proprietors-; 

and  what  ha  ted  out   of  tin    c                  ,  by  its  own 

ai  b  or  tl  the  law,  does  not  so  revert. 

13.  When  i  I             i  shown  that  a  ch 

tn  a  cor]   ■  session  and  actual  mg  the 

i  mst   be   consid  red  as   righ 
against  all  wrong-doers,  and  all  who  havi    bi   :  •  1  with 

them  in  their  corporate  character.     E  \  ■   ty  Academy  v. 

Lindsey,  6  Ired.,  47(i. 

14.  The  sovereign  alone  has  a  right  to  complain;  for,  if  there 
be  an  usurpation,  it  is  upon  the  rights  of  the  sovereign,  and  bis 
acquiescence  is  evidence  that  all  things  have  been  rightfully 


COEPDEATIONS.— I  287 

performed.  Therefore,  where  a  corporation  of  the  mister?,-  of 
an  academy,  <  onsisting  oi"  ten,  was  shov  n  to  have  existed,  and 
corporate  acta  had  continually  been  dene  in  the  name  of  the 
corporation,  although  it  was  shown  by  f:  ede  i'>  aidant,  in  an  action 
:    him    by  the  corporation,  that    but    on  riginal 

•  lined  alive,  it  wot  I  he  corporation  > 

I      i    I  toshoware  s  down  to  the  time 

the  suit.     Ilia 
15.  The  pu  •  all  corporations  is  the  , 

The  substantial  difference  '>    kween  mi 

thi      are  en    ted  b;    tlii    m   <•&  u      of  th     ie    islature,  there 
ing  no  pa  ■  :  | 

at  all  times  to  he  modifi  i    jed  or  annulled.     Other  corpor- 

atio:     arei  alt  of  contract;  the  legislature,  for  the  piu-] 

accomplishing  a  ]  es  to  do  it  by  the  instrumen- 

tality of  i  I  party.  ies  make  a  co\  ■  ■ 

:  '■■  r  and  mtlayof 

he  party  of  the  second  part  the  privili        oj 
poration,  "with  certain  powers  and  ca] 

hanged  or  an  out  the 

ties.     Counties,  &c,  belong  to  the  first  class; 
railroad  and  turnpike  companies  are  instances  of  the  i 

.  558. 
lb'.  Cor]  nS,  though  not  mentioned  in  tire   Constitution 

of  the  United* States,  are  within  its  provisions,  a  ■  cewithin 

the  provisioi  my  oi  ter  general  law.     Th   ■ 

v.  Tlie  Bank  of  C  ■)>■  F,  ar,  13  [red.,  75. 

17.  A  warrant  and  jud  dust  "  J.  F.  J.,  President "  of 
a  corporation,  andanexi  igthereto,  is  a  pi 

ing  againsl  J.  -  .  J.  indi  iridually,  a  ad  the  property  of  the  corpor- 
ation, of  which  liewas]  be  taken  and  sold  undei 

In    i  .      n,//.  v.. 

.  5  - 

18.  Mir.  Mho  seeks  to  avoid 
the  p  i  ibsoription,  upon  i  he  ground  that  one  oi 
the  termini  was  materially  i  hanged  from  that  designated  in  the 

•ion   was  made   without   his 
concurrence  or  consent,     Nor  •  Railroad  Company  v 

h  acJi,  i  Jones,  340. 

19.  Whel  :  I  ed  to  the  el 
;'                                                                      ,  Qst  the  pay 

Ld  the  power  to  prevent 
i 

20.  A  corporation,  whichisa  ithorized  to  be  constituted  under 
a  charter  granted  by  the  legi  not  take  a  bond  payable 
to  ir.  until  it  has  bi  i  n  properly  organized  so  as  to  have  a  cor- 
porate .,/  Com- 
pany v.   Wright,  5  .Tune-. 


288  CORPORATIONS.— I. 

21.  Where  an  act  of  assembly,  incorporating  a  company  in 
which  the  State  was  not  interested,  directed  that  a  certain  per 
feentage  should  be  paid  at  the  time  of  making  subscriptions  to 
its  stock,  but  the  company  organized  and  admitted  a.  subscriber 
to  participate  in  its  meetings,  and  in  the  regulation  of  its  affairs, 
without  paying  such  per  centage,  it  was  held  that  he  could  not 
afterwards  disavow  his  membership,  and  refuse  to  pay  his  sub- 
scription. Haywood  and  Pittsborough  Plank  Jioad  Company  v. 
Bryan,  6  Jones,  82. 

22.  Where  a  party  had  been  permitted  to  subscribe,  to  the 
stock  of  an  incorporated  plank  road  company,  a  certain  amount, 
payable  in  materials,  which  would  be  needed  in  its  operations, 
on  his  refusing  to  pay  in  such  materials,  it  wan  held  that  his 
subscription  became  demandable  in  moneyand  an  action  of  debt 
would  lie  for  its  recovery.     Ibid. 

2.">.  Where  an  act  of  assembly  authorized  a  corporation  to  take 
stock  in  a  public  company,  to  a  certain  amount,  and  the  only 
means  provided  for  raising  the  money  was  by  issuing  bonds, 
and  the  amount  of  bonds  to  be  issued  was  restricted  to  the 
amount  of  stock  to  be  taken,  it  was  held  that  these  bonds  could 
not  be  sold  for  a  price  less  than  par.  Neuse  River  Navigation 
Company?.  Commissioners  of  Newbern,  7  denes,  275. 

24.  A  corporation  cannol  lake  any  thing  in  payment  of  stock 
subscribed,  except  money,  unless  by  express  provision  of  its  char- 
ter.    Ibid. 

25.  Where  the  authorities  of  an  incorporated  town  were  au- 
thorized by  act  of  Assembly  to  subscribe  for  stock  in  a  naviga- 
tion company,  and  to  pay  for  the  same  bythe  sale  of  their  bonds 
to  be  issued  on  certain  terms,  and  such  subscription  was  made, 
and  afterwards  the  navigation  company  obtained  a  mandamus 
to  compel  the  payment  of  the  money;  it  was  held,  to  he  a  suffi- 
cient return  for  the  defendants  to  allege  that  they  had  prepared 
and  executed  the  bonds,  had  offered  them  for  sale  by  public 
advertisement,  and  had  otherwise  diligently  endeavored  to 
effect  a  sale  of  them,  on  tin.'  terms  prescribed  by  the  act  of  As- 
sembly, and  that  they  had  not  been  able  to  sell  them.      Ibid. 

2(1.  In  an  action  against  a  subscriber  to  the  stock  of  a  railroad 
company,  on  a  bond  for  the  payment  of  an  instalment  of  such 
stock",  it  was  held,  that  the  existence  of  a  president  and  engineer, 
acting  and  purporting  to  act  for  and  on  behalf  of  the  corpora- 
tion, and  a  charter  authorizing  the  appointment  of  such  officers, 
were  sufficient  to  establish  its  organization  as  against  the  defen- 
dant and  all  others  dealing  ami  treating  with  them  in  their  cor- 
porate capacity.  Wilmington,  Charlotte  and  Rutherford  Railroad 
Company  v.  Thompson,  7  -Tones.  .">.S7. 

See  (Action  on  the  case.  When  case  will  or  will  not  lie, 
13.)  (Evidence — Parol  evidence,  when  admissible  40^4.)  (Evi- 
dence— Books  of  original  entries,   accounts,   receipts,  &c,  11.) 


CORPORATIONS— I.-II.  289 

(Execution — Levy,  sale  and  application  of  the  money  raised,  59.) 
'Execution — "What  may  be  levied  on  and  sold  under  execution, 
28-29-30.)  (Jurisdiction — Of  the  County  and  Superior  Courts, 
40.)  (Agent  and  Principal — Liability  of  the  principal  for  the 
acts  of  his  agent,  or  by  notice  to  him,  15.) 

II.       OF   PARTICULAR   CORPORATIONS. 

1.  When  an  incorporated  bridge  company  entered  into  certain 
articles,  one  of  which  was  that   the    stockholders  should  liave 

-ion  to  pass  toll   6  ■;  as  they  owned  stock,  it  was 

kdd,  that  the  wagon  of  a  sto  should  not  be  el 

with  toll.     ,:-  \rm>n  v.  Mall  It,  2  tfurph.,  872. 

2.  The  state  bank  of  North  Carolina  (whose  charter  has  ex- 
pired) was  held  to  be  a  private  corporation.  State  Ban::  v.  Clarlc, 
1  Hawks,  36. 

3.  The  act  of  incorporation  of  the  Yadkin  navigation  com- 
pany makes  the  s*  sum.  and  not  the  pay- 
ment tff  it,  essential    to  the  'm> po  i    of  the   subscribers. 

Hawks,  10. 
ikof  Newbern,  in  the 
name  of  the  ]  stock 

bin  the  •  of  '1814,  ex- 

tending        charter  of        .... 
taxation  •  r  . 

5.  -'  ispoi     t  ion  of  the  mail  and  of 

re,  within  the  meaning  of  the 
act  incorporating  I  ke  &   opany,  and  is  sub- 

.    .  ■  Buncombe  Turn- 

i  ■  .  .  .       Dev.  463. 

6.  rhat  clause  of  1  ombe  turnpike  company  charter, 
which  compels  all  persons  \r\  ing  within  two  miles  of  the  road 

aid  company,  andwh  .  liable  to  work  on  public 

.  to  perform  six  di  said  road  in  each  and 

every  unconstitutional,  inasmuch  as  they  are  by  the 

•  passing  over  the 
.1  Dev.  and 
Bat.,  306. 

7.  The  board  of  dired  i  >mbe  turnpike  company 
may,   under  its  char  per  or  overseer  of  the 

i  of  the  roa  I  bhe  corporate 

and  this  a]  |  I  may  be  shown  by  the  production  of  the 

boi        containing  an  entry  of  a  resolution  to  that  effect.     Ibid. 

8.  The  11th  section  of  i  trter  of  the  Wilmington  and 
Raleigh  railroad  company,  n  [rich  Leclares  "  that  ifanystockholder 
shall  fail  to  pay  the  sum  required  of  him,  on  his  subscription,  by 
the  president  and  directors,  within  one  month  after  the  same 
shall  have  been  advertised  in  some  newspaper  published  at  the 

19 


290  CORPORATIONS.— II. 

seat  of  government,  it  shall  be  lawful  for  the  said  president  and 
directors,  without  further  notice,  to  move  for  judgment  in  the 
county  or  superior  court  of  Wake  or  New  Hanover,  against  tha 
delinquent  stockholder  or  his  assignee,  for  the  amount  of  tha 
instalment  required  to  be  paid,  at  any  court  held  within  one 
year  after  the  notice,  and  the  court  shall  give  judgment  accord- 
ingly, or  they  may  sue  for  the  same  in  an  action  of  assumpsit 
or  by  warrant,  according  to  the  jurisdiction  of  th 
tribunals  of  the  State,"  does  not  authorize  a  judgment  against  a 
defaulting  stockholder,  without  his  appearance  or  without  pro- 
cess to  call  him  into  court.  Wilmington  and  Raleigh  Railroad 
Company  v.  Baker,  3  Dev.  and  Bat.,  79. 

9.  Upon  the  confirmation,  by  the  county  court,  of  the  report 
of  the  commissioners  appointed  by  said  court  to  assess  the  dam- 
ages sustained  by  the  owner  of  land,  for  its  condemnation  to  the 
use  of  the  Raleigh  and  Gaston  railroad  company,  no  appeal  is 

given  to  the  company  by  its  charter  of  incorporation,  i 
le  case  come  within  the  provisions  of  the  general  law  in  rela- 
tion to  appeals  from  the  county  to  the  superior  court,     ftalt  igh 
and  Gaston  Railroad  Company  v.  Jones,  1  Ired.,  24. 

10.  Where  the  act  incorporating  the  Pi  ianoke 
railroad  company  declared,  that  after   the 

rnent  of  damages  for  the  land,  to  be  used  for  the  construction  ol 
the  road,  the  company  maj  enter  upon  the  said  land.  &o,  -and 
hold  the  said  land  to  their  own  use  and  benefit,  for  the  purpose 
.if  preserving  and  iid  railroad  during  the  continuance 

of  their  corpora^  (sixty  years,)  and  in  all  things  to 

have  the  same  power  and  autl  I    land  so  i 

during  their  existence  as  a  eorpor  ■  the  laws  of  thisi 

State,  as  though  they  owned  the  fee  simple  therein;"  it  w 
that,  by  this  clause,  the  tit  and 

payment   of  dam.;  I  lant  of  the  land,  as  the 

owner  of  the  li  tte  for  the  t  by  years,  subject  to 

the  earlier  determination  of  the  <  :    from   any   cause. 

■'■■■  '.  v.  Rives,  5  Ired.,  207. 

11.  The  provision- of  the  ch:  iid  company  '-shall 
hold  the  said  land  for  the  purpose  of  piv  id  keeping  up 
the  road,"  does  not  mal  Li  m,  upon  the  performance  of 
which  its  estate  depends,  but  th  i  v  only  assign  the 
reason,  why  the  law  vests  the  estate  in  the  corporation.  From 
the  nature  of  things,  as  for  in  ,  i  lute  n  cessity: 
of  giving  such  a  corporation  a  right  to  theaction  of  trespass  guars 
ciaus!  mfregit  or  ejectment,  toprotei  t  its  i  njoyi  ten!  orthe  road, 
it  follows  that  an  estate  must  be  vested  in  the  corporation,  unless 
it  be  clear  that  the  contrary  was  intended.     H-iO. 

12.  Under  the  charter  of  the  Buncombe  turnpike  company, 
tolls  are  only  demandab^e  at  the  gates  erected  on  the  road;  and. 
therefore,  a  person  who  passes  on  the   road   from   one  point  to 


CORPORATIONS.— IL  291 

another,  between  which  there  ara  no  gates,  is  not  liable  for  any 
toll.     Buncombe  Turnpike  Qompany  v.  Mills,  10  Ired.,  30. 

13.  The  true  construction  oi  the  charter  of  the  Hickory  Nut 
turnpike  company  is,  that  the  State  road,  where  it  crosses  tht' 
Blue  Itidge  at  the  Hickory  Nut  Gap,  is  not  discontinued  by  th*-' 
eaid  charter,  but  is  to  be  continued  and  kept  in  repair  by  the  road 
Overseers  in  their  respective  counties,  until  the  turnpike  is  com- 

Sleted,  and  that  the  company,  for  the  purpose  of  constructing 
ie  turnpike,  has  the  privilege  where  it  is  located  along  thi 
State  road,  to  enter  upon  and  obstruct  it,  when,  where  and  as 
-  is  reasonably   □  to  enable  them  to  make  their 

improvements,  ai  !  w\  h  is  located  near  the  State  road,  the 
same  privilege  is  conferred,  to  be  exercised  in  . 
manner,  in  reference  to  the  interest  of  the  company  and  con- 
venience. of  the  public,  the  latter  being  made  for  a  reasonable 
time  to  give  place  to  the  former.  Adams  v.  Hickory  Nut  Turn- 
pike Company,  11  Ired.. 

14.  Under  the  charter  of  the  North  Carolina  railroad  company, 
(see  act  of  1848,  cl  y  such  benefits  and  advantages 
as  are  peculiar  to  the  particular  tract  in  epiestion,  and  not  such 
as  are  common  to  all  the  lands  in  the  vicinity,  are  to  be  taken 
into  the  estimate,  and  the  amount  deducted  from  damages  to  land 
taken  .                    f  the  road.     Fa  ■! .  v.  rolinah 

Oom\  s,  89. 

15.  One  of  the  commissioners  appointed,  with  five  others,  to 
take  subscriptions  at  a  p:  lace,  under  the  charter  of  the 
North  Carolina  railroad  :ht  in  taking  the 
subscriptions  to  give  a;,  s  as  to  the  line  of  the  location 
of  the  road,  other  than  that  specified  in  the  charter.    North  Car- 

,  340. 

16.  j   ■  I  to  be  made  on  a  dh 

of  a  corj  !•  sec.  24,  as 

applied  to  the  Bank  of  Cape  Fear,  m  i  of  the  eleven  prin- 

cipal directors  am 

ir  appointed  by  the  authorities  of  the  bank  for  its  branches 
Hank  of  Cape  Fear,  5  Jones,  288. 

17.  Whether  under  the  7th  section  of  theeharter  of  the  North 
Carplinarailroad  ci  in  connection  with  the  Revised 

h.  17.  sec.  7,  the  service  of  process  upon  a  mere  station 
agent  is  a  service  of  it  upon  the  corpi  Wago- 

North  Caro  •/,  5  Jones,  367. 

(Act  of  Assembly,  5.)  (Bonds— When  a  bond  may  be 
avoided,  5.) 


292 


COSTS.— I. 


COSTS. 


I.  What  costs  to  be  taxed. 
II.  In  what  court  judgment  to  be  given 
for  them. 

III.  In  civil  proceedings — When  plain- 

tiff pays  costs. 

IV.  In  civil  proceedings — When  defend- 

ant po  y 


V.  When  neither  party  recovers  i  osta. 

VI.  In  cases  arising  on  the  probate  oj 

wills,  who  pays  costs. 

VII.  Security  lor  costs. 

VIII.  Ho  lie  collected. 
IX,  Costs  in  tin  supreme  court. 

X.  Costs  in  criminal  prosecutions. 


I.       WHAT    COSTS     TO    BE   TAXED. 


1.  Surveyors  appointed  in  land  cases,  by  ordei  of  court,  are 
entitled  to  receive  two  dollars  per  day  while  on  the  premises, 
making  the  plats,  &c,  but  white  atti  ading=eourt,  win  re  their 
attendance    is    neces    try,    I  oi  i 

only.     Sheppard  v.  Taylor  Mar.  46(40).     (Court  may  fegulate 
the  allowance         an  ch.  31  sec.  110  an  i  eh. 

-  •"'•;)- 

2.  A  surveyor  and  jury,  who  were  appointed  under  separate 
orders  in  several  distin  paid  full  costs  it    i 
suit,  al:                              Locali      of  d  for,  1 

labor   ansv  for  all  the  surveys.      WUi  ,  1  Hay., 

223,  (256)  and  484,  (557.) 

3.  If  tin  [  on  the  premi  es  in  ten 
vents,  for  did                  i  as  to  different  parcels  of  Ian 

in  all  :  -  i  -the  same,  but  the  di  Pendants  dif- 

ferent, the  ji  I  in  each  i  Harris  v.  J  >  noil', 

Conf.  Rep.  85  (216). 

4.  In  an  action  of  slander,  the  plaintiff  is  entitled  to  ti 

for  the    in  tg  of  the  word'-,  and   two  fo 

i         ition  of  them ;  and  ;  ny  1      oeet  tl 

efendant  as  the  court  mav  deem  to  be  Byrd 

v.  Rouse,  1,  Car.  L.  R., 

5.  The  costs,  which  the  act  oi  1818  requires  tob  : taxed  double, 
against  a  party  w]  to  the  Supreme*  Court,  and  fails  to 
carry  the  case  up  at  '  oper  time,  are  only  those 
of  the  Supreme  Court.     Hester  v.  Hester,  1,  Ired.  187.     (Sec  Kev. 

'    .  eh.  4,   see. 

6.  The  proceedings  upon  a  petition,  for  i  ausedbythe 
erection  of  a  mil]    being  in  a  court  of  law,  where  viva  vo 
mony  is  always  preferre  :.  I  ••    pai  ty  has  ;i  right  to  have  the  at- 
tendance of  his  witnesses  taxed  iti  the  bill  of  costs.     Bridgt  rs  v. 
Purcell,  1,  Ired,  232, 

7.  The  jury,  in  such  a  case,  having  assessed  but  one  dollar  as 
damages,  the  court  could  give  the  plaintiff  no  more  costs  than 


COSTS.— I.  293 

damages,  under  the  act  of  1833.      Ibid,  (see  Eev.  Code,ch.  71, 
Bee.  14). 

8.  Although  defendants  in  an  action  of  trespass  sever  in  their 
pleas,  yet  whei-e  there  is  but  one  judgment  in  their  favor,  as 
"that  they  go  without  day,"  they  shall  have  but  one  set  of  costs 
taxed  for  them.     McNamara  v.  Kerns,  ~;  Bred.,  66. 

9.  After  a  judgment,  the  clerk  has  a  right  t  >  issue  execution, 
against  a  party  to  the  suit,  for  his  own  taxed  &  ists,  although  that 

dec!   in   his   suit.     Clerk  of  David 
Cow.  t  r.  i!  agt  .(,•,  -J:  Ired.,  131. 

10.  What  number  of  witnesses  shall  be  taxed,  for  a  party  who 
r  icoi  e  s,  is  a  matter  of  discretion  in  the  superior  court,  and  can- 
not be  reviewed  on  an  appeal,  Broohsl  '.re,  8 
Ired.,  74. 

11.  Where  the  general  character  of  a  part?'  in  an  action  of 
slander  is  attacked,  and  several  witnei  i  i  are  introduced  for  the 
purpose  of  sustaining  the  ati  I  ing  only  two 
witnesses  to  a  fact  to  be  taxed,  in  the  bill  of  costs,  dues  not 
apply;  it  being  a  case  forth''  F  the  discretion  of  the 
judge  presiding  at  the  trial.     Holmes  v.  Johnson,  11  Ired.,  55. 

1l'.   When  costs  f  i.r.     been  taxed,  upon  a  motion 

at  a  subsequent  term  as  to  the  party  by  whom  tney  are  to  be 
paid  o  late  to  object  they  did  not  attend.     Harris  v.  Lee, 

I  Jones,  225. 

1".   Where  then  ,:1  counts,  in  a  declaration  for  dis- 

tinct   causes  of  action,  and  the  plaintiff  abandons  one   of  the 
in  the  prog]  e  trial,  and  obtains  a  verdict  on  the 

•  ,i.   ,    counts,  the  court,  on  the  motion   of  the  defendant,  will 
'order  that  thee  >r  the  attendance  of  witnesses  to  sustain 

aint,  shall  not  be  ■      inst  him.     Fox  v. 

E<  ii .  1  J<  in  s,  523. 

14.  There  is  no  provision  in  the  law  for  taxing,  as  the  costs  of 
suit,  services  rendered  by  a  sheriff,  under  a  writ  o\ 

.  in  carrying  a  witness  to  court,  b  fee  for 

the  execution   and  return    of  the  writ.     Biggerstajf  v.    Cox 
■  i      i         Rev.  Code,  ch.  102,  sec.  21.)' 

15.  Where  a  witness  was  ruled  by  the  court  to  be  inc 
tent,  and  such  decision  was  not  apj 

bal  the  costs  of  his  attendance  could  not  be  taxed 
■    ■     I  the  adverse  party ;  even-though  the  witness  was  improp- 
erly excluded     Keith  v.  Goodwin,  6  Jones,  398. 

111.  The  taxation  of  costs  by  the  clerk  is  subject  to  the  super- 
vision and  control  of  the  court,  which  will  decide  on  objections 
to  tile  taxation  of  witnesses,  on  account  of  their  number  or  for 
impertinence,  or  because  not  having  been  tendered,  and  the 
court  generally  proceeds  upon  a  rule  obtained  for  the  purpose. 
Wooley  v.  Robinson,  7  Jones,  30. 
17-  Where  a  party  is  apprehensive  that  the  clerk  will  err  in 


294  COSTS.— L-II.-III. 

the  taxation  of  costs,  he  should  move  tho  court  at  ouce  for 
special  directions  to  the  clerk.     Ibid. 
See  (Amendment.)     (Practice — Costs.) 

U.       IN    WHAT    COURT   JUDGMENT   TO    BE    GIVEN    FOR   TIIEH. 

1.  Where  a  judgment  has  been  had  in  the  Superior  Court,  and 
on  an  appeal  to  the  supreme  court  the  judgment  is  reversed  for 
error,  the  whole  judgment,  as  well  for  the  costs  as  for  the  other 
matters,  is  set  aside,  and  the  costs  must  be  taxed  and  a  judg- 
ment given  for  them  in  the  court  below,  which  finally  deter- 
mines the  case.     Stafford  v.  Neivsorn,  12,  Ired.,  17. 

2.  After  an  appeal  from  a  county  to  a  superior  court,  a  proce- 
dendo will  not  be  ordered  to  the  county  court  to  give  judgment 
for  the  costs,  because  the  question  was  to  lie  determined  by  the 
superior  court  in  deciding  on  the  appeal  Pmij  v.  Bay,  12 
Ired.,  24. 

3.  Where  there  has  been  an  appeal  to  the  superior  court,  and 
thence  to  the  supremo  court,  a  pro  annot  issue  to  the 
county  court  to  give  judgment  for  costs,  because  that  question 
is  involved  in  the  appeal.     Ibid. 

See  (Practice — Costs.) 

III.       IN    CIVIL   PROCEEDINGS WHEN   PLAINTIFF   PATS   COSTS. 

i.  The  plaintiff  is  liable  for  his  own  costs,  when  defendant  is 
ihsolvi  i  I  icution  may  -  against  him  fur  them. 

Merrit  v.  Merrit,  1  Hay.,  20,  (27.)    S.  P.,     i  r  Court  Offiae\ 

v.  Lockman,  1  Dev.,  14G. 

2.   If  the  assignee  of  an  unnegoti  Bue  in  the  name  of 

his  assignor  and  fail,  lie  shall,  upon  a  rn  p 

compelled  to  pay  the  costs.     Ashe  v.  Smith,  2  Hay.,  305, 
(Overruled  by  /.■  i,  4  Jones,  423.) 

of  a  suit  by  i  of  a  plaintiff,  exe- 

cution for  co  ued,  until  a  sci  fa.  has  issued 

to  his  representatives.     Sim',  •       'iff,  1  Murph.,  113,  S. 

C,  i  Hay,  341,(521.) 

4.  A  plaintiff  who  fails  in  his  action,  is  liable  to  the  costs  of  all 
the  defendant's  witnesses,  though  they  were  rn  d,  if  it 
appear  that  they  wore  called,  sworn,  and  put  in  the  care  of  the 
sheriff     Venabh  v.  Martin,  1  Car.,  L.  P.,  515,  (lis.) 

5.  Where  severaPtfefendants,  sui  d  in  trespass,  plead  severally, 
and  upon  the  trial  a  verdict  is  rendered  in  favor  of  some  of  them, 
they  shall  recover  full  costs  against  the  plaintiff  notwithstand- 
ing his  recovery  against  the  others.  Stoclcstill  v.  Shit/ird,  1 
Murph.,  39,  S.  C,  Conf.  Pep.,  556,  (574.) 

6.  When  one  appeals  from  an  order  of  the  county  court,  grant- 
ing to  another  leave  to  build  a  mill,  and  the  order  of  the  county 


COSTS.— 1IL  295 

court  is  affirmed,  the  appellant  shall  pay  the  costs  of  the  superior 
court  under  the  general  law  regulating  appeals,  but  the  appellee 
ls  Gable  for  the  costs  of  the  county  court,  under  the  act  of  1771). 
Green  v.  Ealrnan,  2  Murph.,  12.     (See  Eev.  Code,  ch.  71,  sec.  2.) 

7.  The  report  of  the  justice  and  two  freeholders,  under  the  act 
of  1777,  as  to  the  sufficiency  of  plaintiff 's  fences  upon  a  warrant 
to  recover  damages  done  by  cattle,  being  deemed  conclusive, 
plaintiff  was  ordered  to  pay  the  costs  of  witness  summoned  to 
prove  the  truth  of  such  report.  Nelson  v.  Stuart,  2  Murph.,  298, 
S.  C,  1  Car.,  L.  E.,  287,  (29.) 

8.  When  the  lessor  of  the  plaintiff  in  ejectment  enters  on  the 
promises,  during  the  pendency  of  the  suit,  he  defeats  his  own 
action,  and  is  liable  to  pay  the  costs  of  the  suit.  Gubbs  v.  Ellis, 
2  Car.  L.  B.,  612,  (415.) 

9.  -V  party  is  at  all  times  answerable  for  his   own  costs,  and 

h  he  succeed  in  the  cause,   execution  may  issue   against 

him  therefor,  it'  the  same  cannot  be  made  out  of  the  party  cast 

in,  1  Dev.,  146. 

10:  An  infant  is  liable  for  th  'a  suit  conducted  byhifl 

'n  ami,  and  u]        i       Igment  of  non-suit  &fi.  fa.  may  issue 

against  his  property.     Howetbv.  Al  I  Dev.,  431. 

11.  Where  the  proceedings  under  a  writ  of  mandamus  ai 

!,  the  relator.  d  to  pay  the  costs.     DicJuns 

v.  27:"'     ■  "  '     .  i  >ev.,  and  Bat., 

12.  Where  a  petition  is  filed  to  discontinue  an  old  n 

certain  points,  and  establish  a  new  i  i    :  points, 

and  the  petition  is  opposed,  and  the  court,   upon  the  hearing, 
ontinue  the  old  road  and  establish  the  new  one,  as 
prayed  for.  but  directed  another  road  to  be  opened,  passin 
only  a  part  of  the  route  prayed  for  by  the  petitioner, 

ii tifis  must  pay  costs  to  the  defendants.     D 
Hill  11  Ired.,  9. 

13.  When  an  administrator  establishes  his  plea  of  fully 
administered,  the  plaintiff  must  pay  the  costs.      T(  rry  v. 

11  Ired  ,  65. 

14.  In  an  action  of  tree  idants,  where  three 
of  them  were  acquitted  by  the 

ibsequent  to  that  of  i he   trial,   to   have  the  i 
defendant's  witnes 

■lie  half  of  all  the 
been  summoned  jointly  in  favor  of  should  1  '  by  the 

I  this,  although  the  pleas  i 
joint  in  form.     Harris  v.  Lee,  1  Jo 

15.  Whore  several  defendants  are  sued  in  assumpsit  and 

in  their  pleas,  one.  who  has  a  verdict  in  his  favor,  is  entitled  to 

have  the  attendance  of  witnesses,  sumrn        I  for  him, 

in  his  bill  of  costs  against  the  plaintiff,  although  the  jury 

found  for  him  on  a  point  in  the  case,  which  made  it  unnecessary 


296  COSTS.— III. -IV. 

to  enquire  as  to  the  matter  for  which  they  were  summoned ; 
provided  they  were  not  summoned  fraudulently  for  the  purposes 
of  vexation.     Mimday  v.  Henry,  1  Jones,  487. 

1(3.  If  a  plaintiff  obtain  a  rule  upon  a  defendant  to  show  cause 
why  he  shall  not  be  attached  for  a  contempt,  he  must  pay  the 
costs  if  the  court  adjudge  that  there  was  no  contempt.  Weaver 
v.  Hamilton.  2  Jour-,  .  I 

17.  Upon  a  plea  "since  the  last  continuance"  pleaded  in  apt 
time,  and  found  to  be  true,  the  plaintiff,  under  act,  Rev.  Stat.,  ch. 
31,  sec.  79,  must  pay  the  liol<  c  i  of  the  suit.  Wilson  v. 
Pharr,  2  Jones,  451.     (See  Rev.  Code,  ch.  31,  sec.  75.) 

See  (Ejectment — Of  the  declaration,  20.)  (Executors  and 
Administrators — Of  their  liability  for  costs.)   (Highway,  8.) 

IV.       IN    CIVIL   PROCEEDINGS WHEN   DEFENDANT    TAYS    COSTS. 

1.  If  the  plaintiff  summon  material  witnesses  and  not  more 
than  the  number  allowed  by  law.  and  they  are  absent  when  the 
trial  comes  on,  but  the  plaintiff  nevertheless  recovers,  the  de- 
fendant shall  pay  111'1  co  ts  of  i  he  former  attendance  of  the  wit- 
nesses, upon  the  ;  I:  affidavit  of  their  materiality.  Car- 
penter y.  Taylor,  N.  C.  Term,  R.,  265.  (689.) 

2.  Where  the  plaintiff  declares  in  three  counts  and  enters  a 
not  pros,  in  two  of  them,  but  obtains  judgment  upon  the  third, 
the  defendant  is  not  entitled  to  recover  any  costs,  though  he  had 
summoned  witnesses  who  were  ad  be  relevant  to  de- 
fend him  against  the  counts,  on  winch  the  nol-  pros,  was  en- 
tered.    Costin  v.  Baxter,  7  Ired.,  111. 

3.  The  recovery  of  c<  Sts  depends  upon  statutory  regulations, 
and  by  our  statute,  on  i  1 1  arty  who  obtains  a  judg- 
ment is  entitled  to  his  costs.  Ibid.  (See  Rev.  Code,  ch.  31, 
sec.  75.) 

4.  When  a  person,  who  has  commenced  a  suit  'in  formapau- 
peris,  is  afterward  '  i  into  a  prosecution 
bond,  he  is  entitled  upon  his  recovery  in  the  action  to  a  judg- 
ment for  his  costs,  as  well  those  incum  LI  he  was  dispau- 
pered ■•  as  those  incurred  afterwards.  Revel  v.  Pearson,  12 
Ired..  i 

5.  Where  a  suit  is  pending  in  court  for  several  terms,  and 
then  an  order  is  mail.',  irporj  a  rule  to  show  ■  ause  why  the  plain- 
tiff should  not  give  further  security,  that  he  may  "continue  his 
suit  without  further  si  curity;'  it  wa  •  held,  that  this  was  not  an 
order  allowing  the  plaintiff  to  continue  his  suit  in  forma  pau- 
peris^ and  that  being  hound  to  pay  his  witnesses  for  their  atten- 
dance  both  before  and  alter  the  order,  he  was  entitled,  upon  suc- 
ceeding in  the  suit,  to  full  costs.  Biggerstaff  v.  Cox,  1  Jones, 
534. 

(!,   In  the  action  of  trespass  vi  et  arm\s  for  beating  the  plain-. 


COSTS.— IV.-V.  297 

tiff's  slave,  the  plaintiff  is  entitled  to  full  costs  though  his  re- 
covery be  less  than  four  dollars,  the  case  not  being  embraced  in 
the  act,  Rev.  Code,  ch.  31,  sec.  78.  WatMns  v.  Hailey,  5 
Jones.  27. 

7.  Where  a  plaintiff  obtains  a  verdict  and  judgment,  he  is 
entitled  under  the  Rev.  Code,  ch.  31,  sec.  75  to  a  judgment  for 
full  costs,  In  In-  taxed  by  the  clerk,  except  in  certain  cases 
whereby  statute  less  thai  fall  costs  are  given.  Bobin- 
son,  7  -Jones,  30. 

8.  Wl  al  articles  are  sought  to  be  recovered  in  an  ac- 
tion of  detinue,  under  a  declaration  containing  a  single  count) 
and  the  plaintiff  recovers  part,  but  fails  as  to  the  r<  sidue,  the 

lely  as  to  the  articles  not  r&  overed,  are 
■  '•     to  1     excl  ■■'    If   im  the  bill  of  costs,  but   m  ty 
be  tax  to  exceptions  for  excess  in  number,  or  for  irre- 

levancy. 

9.  Where  the  plaintiff,  in  an  action  of  slander,  recovers  less 
than  four  dollars  in  dai  .  '  can  under  the  act  Rev.  Cede, 
ch.  31,  sec.  78  me  amounl    i  but  the 

r  that  act,  to  have  his  costs  taxed 
tiff,  he  having  to  pay  them  himself.     Coatesv. 
S  .  7  Junes.  124. 

and  Administrators — Of  their  claim  to,  or  lia- 
bility for  costs.)     (Mandamus  and  Quo  Warranto,  1.) 

V.       WHEN    NEITHER    PARTY    RECOVERS    COSTS. 

1.  Where  heirs  are  made  parties  by  set.  fa.  loan  action  of  tres- 
pass .,■/,■  rinally  brought  against  the  ancestor, 
and  aft  r  tli  lapse  of  several  years  the  sci.fa.  is  dismissed  on  de- 
fendants' motion,  on  the  ground  that  they  were  not  properly 
iarty  is  entitled  to  costs.  Porter  v.  Knox, 
ICar.,  L.  R.,  521,  (134.) 

5.  The  heirs  ;,i  such  case  would  have  been  entitled  to  costs 
had  they  pleaded  in  abatement.     Ibid, 

3.  Where  an  action  of  detinue  for  a  slave  was  referred,  by  a 
i  i  court,  to  arbitrators,  who  awarded  the  slave  to  theplain- 

;  he  should  pay  the  defendant  the  purch 
but  were  silent  as  to  the  costs,  it  was  held  thai,  each  party  must 
par  his  own  c  n  ts.     Arrington  v.  Batik;  2  Murph.,  240,  S.  O,  l! 
Car..  L.  E,  109.  (14.) 

4.  When  a  suit  abates  by  the  death  of  one  of  the  par' 
there  is  no  judgment  lor  costs,  each  party  is  liable  for  his  own 
costs      Offia  rs  v.  Taylor,  1  Dev.,  99. 

5.  Upon  an  arrest  of  judgment  neither  party  recovers  costs,  but 
each  pays  his  own.     State  Bank  v.  Tivitty,  2  Dev.,  386. 

6.  Where  a  person  sued  in  forma  pauperis,  and  recovered  a  ver- 
dict, but  the  judgment  was  for  the  amount  of  the  verdict  only, 


298  COSTS— V.-VI. 

and  not  for  the  costs,  he  cannot,  afterwards,  upon  a  rule,  'ha"ve 
an  order  that  execution  shall  issue  against  the  defendant  for  his 
costs.     Carter  v.  Wood,  11  Ired.,  22. 

7.  Where  an  application  is  made  for  a  mandamus  by  relators, 
who  have  no  particular  or  private  interest  in  the  controversy, 
which  was  entirely  of  a  public  nature,  they  are  not  liable  to  pay 
costs  to  the  defendants,  on  the  dismission  of  their  application. 
State  v.  Bonner,  Busb.,  257. 

8.  Where  a  defendant,  in  a  bastardy  proceeding,  is  acquitted  of 
the  charge  by  the  jury,  upon  an  issue  submitted  to  them,  he  is 
not  bound  for  the  State's  cost.     Adams  v.  Pate,  2  Jones,  14. 

9.  Where  a  cause  pending  in  court  is,  by  a  rule  thereof,  re- 
ferred to  arbitrators,  who  proceed  to  act  and  make  an  award  afi 
to  all  the  matters  in  controversy,  in  favor  of  one  of  the  parties, 
but  without  saying  anything. as  to  the  costs,  the  successful  party 
cannot  have  a  judgment  for  his  costs,  but  each  party  must  pay 
liis  own.     Debrule  v.  Scott,  8  Jones,  73. 

10.  The  contest  of  a  sheriff's  election,  before  the  justices  of  the 
county  court,  is  not  an  afition  within  the  meaning  of  the  Revised 
Code,  <-]i.  31,  se  ■.  75,  which  gives  to  the  successful  party  full 
costs,  but  in  such  contest  each  party  must  pay  his  own  costs. 

•ay,  8  Jones,  278. 

11.  In  a  matter  of:  nature,  the  officer,  who  acts  on  be- 
half of  the-  Slate,  doos  not  pay  costs  to  the  other  party,  though 
the  latter  may  succeed  hi  the  suit.  Houston  v.  Neuse  River  No 
ligation  Company,  8  -Tones,  476. 

( I  >istribution  7,)  (Mandamus  and  Quo  Warranto,  1.) 

VI.       IN  CASES  ARISING  ON  THE  PROBATE  OF  WILLS,  WOO  PAYS  COSTS. 

1.  A  will  was  offered  for  probate  in  the  county  court,  a  caveat 
red  by  the  defendants,  and  on  the  issue  being  found  in  favor 

of  the  will,  both  as  to  real  and  personal  estate,  the  defendants 
appealed.     On  the  trial  in  the  superior  court,  the  jury  found  it 

i  good  will  of  personal  but  not  of  real  estate 
that  the  plaintiff  had  a  right  to  recover  from  bhe  di  Pendants 
their  costs  both  in  the  county  and  superior  courts.  If  the 
dants  had  appealed  only  from  so  much  of  the  judgment  of  the 
county  court  as  related  to  the  real  estate,  then  the  c  >sts  of  the 
superior  court  would  have  followed  the  judgment  of  that  court 
>,- 1  Ired.,  561.  (Wills  of  real  and  persdfca] 
as  to  their  execution  and  probate,  are  now  put  on  the  same 
tooting.     See  Revised  Code,  ch.  119.) 

2.  Upon  the  trial  of  an  issue  of  devisavitvel  non,  the  court  has 
no  discretion  to  make  any  other  than  the  losing  party  pay  the 
whole  costs.  Little  v.  Lockman,  5  Jones,  433.  (Courts  have 
now  a  discretion  to  direct  how  and  by  whom  the  costs  shall  be 
paid.     See  acts  of  1860,  2nd  extra  session,  ch.  7.) 


COSTS.— VI.-VII.-YIII.  299 

See  (Executors  and  Administrators — Of  their  liability  for 
octets,  4.) 

VTI.       SECUK1TY    FOR  COSTS. 

1.  The  courts  have  power,  from  time  to  time,  to  make  rules  for 
the  plaintiff  to  give  further  security  for  the  costs,  and,  in  case  of 
failure  to  comply  with  the  rules,  to  dismiss  the  suit.  Tyler  v. 
Person,  1  Murph.,  498. 

2.  Persons  may  sue  in  the  superior  court  in  forma  pauperis, 
upon  satisfying  the  court  that  they  have  a  reasonable  ground  of 
action,  and  from  extreme  poverty  are  unable  to  procure  security; 

,  2  Murp'h.,  247,  S.  C,  1  Car.  L.  R.   101, 
(13.)     (See  Rev.  Code.  ch.  31.  sec.  40.) 

3.  Sureties  for  the  prosecution  of  a  suit  are  bound  for  the  costs 
accruing  before,  as  well  as  after  the  execution  of  the  bond. 
Wilson  v.  57. 

4.  Where  the  plaintiff,  at  the  commencement  of  a  suit,  ha* 
given  security  for  cution,  the  court  ■ 

cards,  on  his  petition,  allow  him  to  prosecute  it  in 

■curity, 

and  obtained  a  rule  tha      irrther  seci  ould  be  given,  or 

tiould  1  Holder  v.  Jones,  7  Ired,,  19L 

5.  In  such  a  case  the  court  ought  either  to  have  dismissed  the 
suit,  according  to  the  rule,  or  to  have  made  an  order  on  ths 
plaintiii's  petition,  to  permit  him  to  carry  on  his  action   without 

•  irity.     It  could  not,  without  the  defei 
,  discharge  the  first  surety  from  his  responsibility.     Ibid. 

6.  When  the  heirs  come  in  and  are  made  parties,  upon  the 

m  of  ejectment,  the  defendant  may, 
ififcfc  think  proper,  obtain  a  rule  upon  them  to  give  security  for 
tHP&sts,  which  the  court  will  grant,  if  ; 

is  to  the  prosecution  '  nt,  or  in  doubtful 

circumstances.     Thomas  v.  KeUy,  13  I  red.,  43. 

Vni.       EOW   COSTS   MAY    BE    COLLECTED. 

1.  Whi  ire  a  plaintiff  in  a  suit  was,  although  successful,  ordered 
he  costs  of  certain  w  was  held  that  the  court 

might  order  afi./a.  to  issue  .for  the  le  in  the  name  of  the 
clerk's  office,  and  that,  if  it  appeared  upon  the  return  of  thi 
that  tlie  party  was  insolvent,  the  court  might  properly  order 
such  costs  to  be  paid  out  of  certain  money  in  the  ha] ids  of  the 
sheriff,  raised  on  an  execution  in  favor  of  such  insolvent  party. 
Clerk's  Office  v.  Allen,  7  Jones,  15G. 

See  (Costs — What  costs  to  be  taxed,  10.) 


300  COSTS— IX.-X. 

is;  costs  in  the  supreme  court. 

1.  Although  costs  are  not  expressly  given  by  any  act  of  the 
General  Assembly,  organizing  the  supreme  court,  yet  the  powei 
of  giving  a  judgment  tor  them  necessarily  results  from  the 
several  acts  of  1810,  1818  and  1825.  Sparks  v.  Wood,  1  Dev. 
and  Bat.,  489.     (See  Rev.  Code,  eh.  ?,?,,  sec.  13  and  21.) 

2.  If  a  judgment  against  a  defendant  be  reversed,  in  the 
supreme  court  as  to  part,  and  lie  affirmed  as  to  the  remainder. 
fche defendant  will  be  entitled  to  recover  his  costs  in  the  supreme 
court.  ^  8  itterwhite  v.  ( 'arson,  3  Ired.,  549. 

3.  When.-.  upon  an  appeal  to  the  supreme  court  is 

id  in  part,  the  appellee  must  pay  the  costs  of  the  supreme 
court.     Harris  v.  Lee,  1  Jones,  225. 

X.       COSTS    IX    CRIMINAL   PROSECUTIONS. 

1.  The  court  cannot  order  the  State  to  pay  costs  on  obtaining 

a  continuance,  nor  indeed  in  any  case.     State  v.  ,  1  Hay, 

221,  (254) 

2.  If  the  prosecutor  on  an  indictment  had  probable  cause, 
though  his  motives  were  of  the  worst  kind,  he  ought  not  to  pay 
costs."     State  v.  Forsyth,  Tay.,  21,  (16.) 

3.  If  the  county  court  order  the  prosecutor  to  pay  costs,  and 
at  the  next  term  .and  order  the  defendant  t< 
pay  them,  and  be  appeals  to  the  superior  court  therefrom,  tha 
court  wiil  not  examine  the  question,  though  the  proceeding  h. 
improper,  if  the  whole  record  of  the  cause  have  not  been  brough 
up.     Ibid. 

4.  A  defendant  in  an  i  is  not  bound  to  pay  the  wit 

1  pon  conviction.     Stated.  Uuryak. 
Conl  Hep..  63,  (196.) 

5.  On  the  acquittal  of  a.  defendant  in  an  indictment  for  petit 
larceny,. the  court  may  order  the  prosecutor  to  pay  the  costs. 
State  v.  Lambrieh,  1  (Air.  L.  1!.,  543,  (15(3.) 

6.  In  no  ease,  where  the  punishment  extends  to  life,  limb  or 
member,  can  the  court  on  the  acquittal  of  the  defendant  order 
the  prosecutor  to  pay  costs.  In  all  other  eases  it  may  be  done, 
if  the  prosecution  appear  to  be  frivolous  or  malicious.  Ibid. 
(See  Rev.  Code,  eh.  35,  see.  37.) 

7.  Wl  and  jury  returns  a  bill  of  indictment,  "not  a 
true  bill,"  the  pn  secutor  is  bound  to  pay  the  witness  for  the 
State,  and  one  half  the  other  costs.     State  v.  Smith,  2  Murpfa.,  fiO. 

8.  Upon  the  removal  of  an  indictment  to  another  county  for 
trial,  the  county  from  which  the  cause  -was  removed  will  he  en- 
til  -d  to  any  hue  that  maybe  imposed  in  the  case  of  a  conviction, 
and  will  be  liable  to  the  costs  of  the  prosecution  in  the  case  of 


COSTS.— X.  301 

an  acquittal.     FinSley  v.  Eririn,  2  Murph.,  214,  S. 0.,  1  Car.  L. 
IL  105,  (14.) 

9.  When  ;  on  an  indictment,  on  ac- 
count of  some  defect,  aft  lepende'd  for  several  terms,and 
a  new  bill  is  found,  the  defendant  upon   conviction  mav  be  a  m- 

jelled  to  pay  fortheatt  the  witnesses  the  whele  I  imi 

State  v.  Hashaw,  2  Car.  L.  R.,  251,  (23c.) 

10.  [fan  indictment  be  quashed,  and  the  prosecutor  be  order- 
ed t"  paj  the  costs',  he  is  nol  I  r  the  attend- 1 
witnesses   on  either   side.       Offu  \  v.  Gray,   2   Car.   L.  E      P-i 

11.  Where  the  defendant  in  an  indictment  is  acquitted,  or  a 
i  bound  to  pay  his*own  cdsts*and  no 
other.  223. 

12.  On  an  ap  me  coHft,  the  sure- 

the  appeal  are  ts  of  the  BU] 

nut  prison  charges  are  uot  a  part  of  such  costs,     Sto 
crs.  1  Hawks 

13.  The  act  i  l   1787,  authorizing  persons  convicted  on  indict- 

the  co  ts  t( 
I  out  by  tb  held  to  be  repealed  by  I 

pf  1797.     State  v.  Hood,  1  I'-. 

11.  Whereasla1  ledinjailup 

murder,  and   i  ! 

the  jail  fees  as  well 
_'  D»  v.  47. 

15.  An  owner,  wl  !  i  against  hie 
slave,    i                                i                   iviction,   to  pay  not  on!"  the 

arrying  the 
sentence  inti 

16.  The  court  can,  in  no  c  rand  jury  returns 
a  bill.  ■             i                                                   L"  to  pay  the  costs.— 

■ 

17.  An  indi  '  one  of  th  se  "fi : 

or  mali  wev,  upon 

jury, io  ordi 
cuter  to  pay  the  ause  at   the  tin 

a  ■  •  ler  the  pros 

;  u  tend,  and  in 

]  case    e        ■  ■  ..  extend  i  -  a  member.     Ibid. 

(See  Rev.  Code,  ch.  7,  c  51.) 

18.  When  ;   from  one   county  to 
another,  in  which   the  prisoner    is  pense  oi 
guarding  the  jail  in  the  enmity,  in  which  the  convictio] 
place,  must  !"■  defrayed  by  the  county  from  which  the  cau 
removed.     State  v.  Justices  of  Anson,  11  Ired.,  135. 

19.  Upon  the  conviction  of  a  slave,  under  the  48th  section  of 
the  111th  chapter  of  the  Rev.  Stat.,  the  owner  and  not  the  hirer 


802        COSTS.— X.— COUNTERFEITING—COUNTY. 

is  liable  for  the  costs  of  the  prosecution.     State  v.  Levi,  Busb.  6 
(See  Rev.  Code,  ch.  107,  sec.  69.) 

20.  Whether  a  justice  can  or  cannot  give  costs  in  a  proceeding 
an  a  peace  warrant  against  the  defendant,  bound  by  him  to  ap- 
pear in  court,  such  court  cannot  revise  the  judgment  of  the  jus- 

.  tice  giving  costs.     State  v.  Wilson,  1  Jones,  550. 

21.  The  master  of  slaves  committed  to  jail  on  the  warrant  oJ 
a,  justice,  for  an  offence  cognizable  in  the  superior  court,  is  liable 
for  the  costs  including  the  jail  fees,  although  the  grandjury, 
Upon  an  enquiry,  may  have  refi  l  :e  a  presentment  against 
the  slaves.     State  v  Peter,  6  Jones,  846. 


COUNTERFEITING. 

See  (Indictment — In  what  cases  an  indictment  will  lie; 
(Indictment — Form  and  matters  relating  thereto,  36-37-40-41- 
46-^64^65-124^159-160.) 


COUNTY. 

1.  As  the  legislature  may  com  titute  two  counties  out  of  one, 
it  may  also,  as  incident  i  ■  I  hat  power,  direct  a  fair  and  reasonabL 
division,  to  be  mad  any;  fund  bef 

levies  on  the  inh:  unties  in  common,  and 

to  provide  for  pnfi  ■■    ■  ■  "f  by  those  who  have  it 

in  hand.     Lovev  Schenck,  12  Ired.,  I 

2.  Interpretation  by  the  court  of  the  several  acts  relating  to 
the  division  of  the  counties  of  Lincoln,  Catawba  and  Gaston. 
Ibid. 

3.  The  act  of  assembly,  requiring  the  payment  of  certain 
moneys  by  the  county  of  Lincoln  to  the  county  of  Gaston,  ap- 
plies only  to  such  persons  as  had  the  fund,  or  a  part  of  it,  in 
hand  at  the  passing  of  the  act,  or  might  have  it  afterwards.  It 
does  not  charge  one,  through  whose  hands  the  money  had  merely 
passed,  and  from  whom  it  had  been  taken  by  the  court  Before 
the  passage  of  the  act.     Love  v.  Iiamsour,  12  Ired.,  328. 

See  (Corporations — Of  corporations  generally,  15.)  (Jurisdie 
tion — ©f  the  county  and  superior  courts,  7.) 


COVENANT.  3Ci3 


COVENANT. 

1.  In  covenant  for  the  non-delivery  of  certain  articles,  upon 
the  plea  of  "always  ready,"  the  plaintiff  must  prove  a  demand 
and  refusal,  or  neglect.     Armistead  v.  „  [bbalson,  Mar.,  25,  (12.) 

2.  A  deed  acknowledged  thai  I  bt,  and. 
in  consideration  thereof,  com  'editor,  with 
authority  to  sell  for- his  sati  qoI  amount  to  a 
covenant  to- pay  the  money,  fo]                  i  action  can  be  brought, 

for  the  same  deed  shows  it  satisfied.     v.  May,  2  Hay., 

127.  <:. 

3.  Covenant  will  lie  on  the  condition  of  a  bond  with  a  penalty 
Cat.  by  Haywood.  Jasper  v  2  Hay.,  339,  (518)  and 
351,  (538.)  * 

4.  Covenant  will  not  lie  on  the  assignment,  under  seal,  of  a 
bond  for  the  payment  or  delivery  of  tobacco,  the  breach 
assigned  being  that  the  obligor  in  the  not  deliver 
the  tobacco.     Brich  U  v.  Batch  lor,  Conf  Rep.  109,  (239.) 

5.  An  assignee  by  estoppel  cannc  i  an  action  of  cov- 
enant.   Nesbii  v.  Nesbit,< 

There  the  covenant  in  a  charter  p:  freight 

day  alter  the  delivery  of  the  goods  to  the 

con  ignee,  1  d  that  the  el   could  not 

upon  the ■ 
without  averring  and  proving  that  he  had    earned  the 
according  to  the  terms  of  the  covenant.     Lorent  v.  Potts,  1  Car 
L.  R.  I 

7.  Defendant  covenanted,  ",thatin  consideration  of  £44  paid  to 
him,  he  had  sold  to  plaintiff  a  note  upon  J.  A.  for  £50,  and  ii 
there  should  any  thing  recovery  of  the  said,  n 

if  J.  -V.  should  pa  '  .    the  depreciation, 

the  same  good  to  the 
d  a  receipt  by  one  D.  to  him 
tor  £18,  the  [f  to  make  it  good,"  held 

that  tie  t secured  thg  plaintiff  against  tib^e  insolvem 

J.  A.,  the  allowance  of  the  cE  ;  of  D; 

and  that  an  a  id  not 

m  a    judgment   by   a  suit  at  law.     Hoover  v.    Clark,   3 

8.  By  the  affirmative  plea  of  the  performance  of  covenants,  the 

to  prove  whatever  is  necessary  for  his  de- 
fence.    J,  dgesv.  Dean*,  2  Hawks.  93. 

9.  Where  one  covenants  for  himself,  without  mentioning  hie 
heirs,  to  convey  land  on  a  certain  event,  and  dies  before  that 
even!  happens,  his  administrator  is  not  liable;  and  it  seems  that 
the  only  remedy  is  against  the  heir  inequitv.  Eark  v.  McBbaveU 
1  Dcv.'ltJ. 


304  COVENANT. 

10.  In  an  action  of  covenant  for  uncertain  damages,  no  set  off, 
or  claim  in  the  nature  of  a  set  off,  can  be  allowed;  and  hence  in 
an  action  against  a  lessee,  for  breach  of  his  covenant  to  build  a 
mill  within  the  term,  it  was  IheH,  that  he  was  not  entitled  to 
show,  in  mitigation  of  damages,  the  building  of  the  mill  after 
the  term.  But  it  seems  that  part  performance  of  the  covenant, 
during  the  term,  is  an  answer  to  the  damages  pro  tanto.  Dowd 
v.  Faua  tt,  4  Dev.,  92. 

11.  Where  a  party  incurs  an  obligation  by  his  own  act,  he 
will  be  bound  to  th  at,  and  will  not  he 
excused  from  its  non-performance  by  accident  from  inevitable 

ity,  as  he  would  be,  if  th  on  were  imposed  on  him 

by  law.'  And  for  the  breach  of  such  voluntary  engagement,  the 

extent  of  the  injury  forn  per  measure  of  damages,  how- 

b   ve  been  defeated.     Clancy  v.  Ovcr- 

12.  '■  :pressly  made-,  with  A,  but  declar- 
ed to  I                   benefit  of  B,  vests  the  legal  interest  in  A,  yet 

is- not  i  sly  declared,   the  inference  of 

law,   because  the  infere  ason,   is  that  the  covenant  is 

ivith  him  or  them,  for  whose  benefit  it  purports  ti 
■  en  given.     Therefore,  where  certain  persons  guaranteed  that 
W  would  pay  to  the  -j       at  om]  any  of  stage  contractors, 

of  mon       that  might  come  to  his,  W's,  hands,"  as 
also  for  the  company,  ;.  that  an  action  I 

lefault   of   W,    shi 
■at  by  the  company,  and  net  by  their  agent,  to  whom  the 
money  was  to  be  paid.  *  /'.  7c  v.  Gilmer,  1  Dev.  and  Bat., 
IS.  mild  set  up  mere   delay,  or  want  o 

a  i!i  i'.  M.-e    i  gainst,  an   express, 

al  covenant,  it  coulcl^^eral 

the  rown  on  him. 

Ibid. 

14.  Iu  tomaki  eyanceof  land,  "when  called 
for,"   t,o  one,  with    .    adi  ing   "and  to  his  heirs,"  if  th 

il  [out   having  called  for  a  conveyance,  th    cove- 
lier  not  bound  to  convey  to  anyperson,  or,  if  to  any 

:  he  heir;  and  in  aei  >  ad 

atee  maintain  an  ac  ovenant.      1 ' 
!,  4  Dev.  and  Bat., 

15.  Where  it  appeared  ant  had  covenanted  to 
put  up  an  engine  for  a  steam  by  a  particular  tin  .  in  a 
buMi]                  rected  by  the  plaintiff,  whi  h  building   \ 

at  the  specified  time,  it  was  held,,  i         th   erectii  the 

building  by  the  plaintiff  was  necessarily  a  condition  preci    Lent, 
and  that,   therefore,  the  plaintiff  could  not  recover  for  a  I 
of  the  defendant's  covenant,  in  not  putting  up  the  engine  by  the 
time  appointed.     Boyle  v.  Reeder,  1  Ired.,  607. 


COVENANT.  305 

1(3.  Where  the  plaintiff  had  covenanted  that  he  would  build 
and  complete  a  house  for  the  defendant,  by  the  first  day  of  April, 
1842,  and  the  defendant  in  the  same  deed  agreed  to  pay  the 
plaintiff  $2,50Q  when  the  house  was  completed;  if.  was  held, 
that  the  latter  v. as  a  dependent  covenant,  and  the  plaintiff  could 
not  recover  on  the  covenant,  unless  he  showed  that  he  had  com- 
pleted the  house  by  the  first  day  of  April,  1842.  Clayton  v. 
Blake,  4  Ired.,  4D7.  ' 

17.  The  dependence  or  independence  of  covenants  is  to  be 
collected  from  the  evid  I  sensi  and  meaning  of  the  parties. 
and,  however  transposed  they  may  be  in  the  deed,  the  prece- 
dency must   depend  i  order  of  time,  in   which  the  intent 

m,  requires  their  performance.     Ibid. 

18.  Where  a  house  has  I  een  built  under  a  cov  nant,  though 
not  according  to  the  conditions  of  the  covenant,  and  the  person 
for  whom  it  is  built,   accepts  it,  although  the  party  building 

'cannot  recover  on  the  covenant,  he  may,  in  a  proper  action, 
y  i  over  a  remuneration  tor  his  work,  labor,  &c.     Ibid. 

19.  Where  A  gave  by  deed  five  hundred  dollars  to  B  after  his, 
I'm  granti  •:  ■  >:  ath,  to  hi  ve  and  to  held  In  him,  Iris  executors, 
&c  ,  and  then  warranted  the  said  sum  to  take  effect  at  his  death, 
to  the  said  I!,  his  excutors,  &c,  it  was  lield  that  this  was  not  a 
remainder  in  a  personal  chattel  after  a  reservation  of  a  life  estate, 

ticular  chattel   being  designated,   and  that  an  action  of 
covenant,  as  well  as  of  debt,  might  be  brought  on  it  against  the 
istrator  of  A.     Taylor  v.   Wilson,  5  Ired.,  214. 

20.  Covenant  and  debt  are  concurrent  remedies  for  the  recov- 
ery of  any  money  demand,  when  there  is  an  express  or  implied 
contract  in  any  instrument  under  seal  to  pay  it.     1 

21.  A,  B  and  C  coi  mai 1  in  January,  1842,  to  i><  '   amity  D 

and  E  tor  advances  made  by  the  two  latter  to  F,  durh  2;  I  ie  year 
1842,  each  (including  D  and  E)  to  be  responsible  not  exceeding 
$500.  On  the  6th  January,  1843,  the  said  parties,  together 
with  '■.  the  defendant,  covenanted  "to  continue  their  n  sponsi- 
bility  for  F  for  and  during  the  year  1843,  upon  the   •  terms 

and  for  the  same  purposes  as  set  forthintheforegoin  covenant 
for  the  year  1842,"  with  the  same  restriction  as  to  the  n  5ponsi- 
bilitynf  the  parties  to  Sal  in.  One  of  the  parties  proved  ;  1  dvent; 
and  it  was  held  that  the  defendant,  G,  was  only  respi  nsil  for  ad- 
vances made  in  the  year  LSI:!;  and  that  neither  of  the  0  >\  lantors 
Was  responsible  for  more  than  $500  in  either  of  the  3  s;  and 
that  it  was  a  several  contract  so  that  none  was  res]  0      Me  for 

!  the  share  to  be  contributed  by  the  one  who  proved  ulvent. 
Williamson  v.  ChiU  s,  5  Ired.,  244. 

22.  When  a  covenant  is  once  made  between  parti,  e  it  binds 
and  is  lee-ally  presumed  to  subsist,  until  it  be  showi  be  per- 
formed or  resemded.  Therefore,  where  A  covenai  vith  B 
that  he  would  pay  him  rent  for  a  certain  tract  of  Ian  I  rovided 

'20 


306  COVENANT. 

B  continued  a  contract,  respecting  the  said  land  then;  'subsisting 
between  him  and  C ;  it  ivas  held  that  before  A  could*  discharge 
himself  from  the  payment  of  this  rent,  he  must  show  that  the 
contract  between  B  and  C  had  been  rescinded.  Love  v.  Edmon- 
ston,  5  Ired.,  354. 

23.  On  a  covenant  by  the  defendant  to  pay  the  plaintiff  $524, 
provided  the  title  she  >  acquired  to  her  deceased  husband's  land 
by  the  sale  of  a  sheriff  under  an  execution  against  the  heirs  of 
her  husband,  should  prove  to  be  valid,  in  opposition  to  asalemade 
by  the  executor,  urn  lev  i  power  in  the  will  to  sell  for  the  benefit 
of  volunteers,  it  was  Mdthatthe  plaintiff  was  entitled  to  recover, 
the  creditors  having  a  right  to  sell  the  land  in  preference  to  the 
right  of  the  executor  under  the  will.  Ingram  v.  Sloan,  5-Ired.,  565. 

24.  Where  there  is  a  conveyance  of  chattels  in  immediate  and 
absolute  property,  and  there  is  in  the  same  indenture  a  distinct 
personal  covenant  of  the  grantee,  that  the  grantor  shall  have 
certain  uses  of  the  property  during  life,  that  ought  not  to  be 
construed  as  a  reservation  of  a  liie  estate,  but  betaken  as  a  cov- 
enant merely;  chiefly  because  the  granting  part  of  the  instru- 
ment would  otherwise  be  made  void,  and  thus  thewhole  contract 
become  of  none  effect.     Howell  v.  Howell,  7  Ire<L  491. 

25.  All  instruments  made  at  the  same  timtyand  relating  to 
the  same  subject,  may  be  treated  as  but  one  and  construed 
together,  where  this  is  necessary  to  effectuate  the  intention,  and 
the  provisions  of  the  instruments,  so  put.  together,  will  not  be 
incompatible.  But  when  contracts  are  put  into  several  instru- 
ments, each '-of  which  has  a  sensible  meaning,  and  may  have  a 
full  operation  by  itself  they  ought  not  to  be  put  together  for  the 
purpose  ot  making  them  mean,  as  one,  differently  from  what  they 
could  in  their  separate  state,  and  especially  when  the  effect  of 
such  consolidation  would  be  to  avoid. an  essential  part  of  the 
contract.     Ibid.  + 

26.  In  the  construction  of  covenants  technical  rules.- are  not 
to  be  so  much  considered,  as  the  real  meaning  of  the  parties, 
where  it  can  be  gathered  from  the  instrument  itself;  and-.fo 
arrive  at  the  intention,  sentences  may  be  transposed,  a  ad  insensi- 
ble words,  or  such  as  have  no  distinct  meaning,  may  ba  rejected. 
The  whole  instrument  must  be  taken  together,  and  one  part  may 
be  explained  by  another.     KilUan  v.  Harsliaw,  7  Ired-,,.  497. 

27.  When  the  me  ming  of  a  word  in  a;  covenant  is  to  be  ex- 
plained bya  custom,  the  custom  must  be  proved  to  lie  so  general 
that  the  parties  to  the  contract  must  be  presumed  to  have  refer- 
ence to  it.     Bead  v.  Granberry,  8  Ired.,  109'. 

28.  Where  a  plaintiff  'declares  upon  a  specific  covenant,  to  do 
a  work  in  a  certain  time,-  he  cannot  recover  for  the  price  stipula- 
ted in  that  contract,  unless  he  shows  that  he  has  performed  his 
work  within  the  specified,  time.  Daiueroii  v.  Irwin,  8  Ired., 
421. 


COVENANT.  307 

29.  A  promise,  made  after  a  covenant,  is  merged  upon  the 
same  ground  that  a  covenant  made  before  is  merged,  when  the 
promise  and  the  covenant  are  precisely  the  same,  because  the 
covenant,  being  a  deed,  is  the  surest  and  highest  evidence. 
Bur  Ties  v.  Allen,  9  Ired.,  370. 

30.  A  bond  was  given  to  B  for  the  rent  of  a  house  and  lot, 
and  in  the  same  instrument  was  the  following  stipulation,  "and 
the  said  13  is  to  put  the  house  in  order,  and  to  put  up  the  fences,'" 
&c.  The  lessee  entered  upon  anil  enjoyed  the  premises  during 
the  time;  and  it  tens  held  that  the  covenant  to'  repair  was^not 
a  condition  precedent?,  and  that)  B  was  entitled  to  recover  the 
rent,  without  showindsthat  he  had  made  any  repairs.  Walters 
v.  Smatv,  10  Ired..  291 

31.  Where  one  of  two  administrators  covenants  t&at "ascertain  ' 
slave  "belongs  to  him-,  and  that  the  sole  rigiit  of  the  said  slave 
is  in  him1  as  the  administrator  of  A,"  it  is  no  breach  of  the  cove- ' 
nent  that  the  title  of  the  slave  is  in  the  two  administrators  of  A. 
Cowles  v.  Rowland,  2  Jones,  21»: 

32.-  A  covenant  made  by  the  buyer  of  a  dave.'that  he  would 
give1  the  seller  the  refusal  at  a  ■  urn  price,  should  he  ever  wish 
te  dispose  of  the  slave,  is  a  valid? stipulation?;  audit  is  no  breach 
■f  the  contract  for  the  seller  to  lend  the  slave  to  his  son,  living 
twenty  miles  out  of  the  State,  for  a  week,  if  the  loan  were  made 
bona  fide;  nor  was  it  any  bread  'that  the  son  sold  the  slave,' 
without  the  knowledge  or  consent  of  his  rather,  until  the  father' 
ratified  the  sale.  Hence  where  the  writ  for  an  alleged  breach  of 
the  covenat  was  issued  after  the  sale  by  the  son,  but  before  the 
ratification  by  his  fathei.  it  was  ltdd  that  the  suit  was  premature 
and  could  not  be  maintained.    Murrett  v.   Weath  rs,  3  -tones.  52.r>  ■ 

33.  To' make  a  valid  covei  ant,  it  is  e  ssential  that  there  should 
be  a  covenantee  named  in  the  instrument.  Kent  v.  Edmunston. 
4  Jones,  529. 

34.  Where  .V  covenanted 'that  he  would,  on  a  certain  day; 
make  and  tender  to  B  a  deed  for  a  certain  tract  of  land,  arid  B 
covenanted  that  thereupon  he  would  execute  and  deliver  bonds 
for  the  purchase  money,  and  A  tendered  the  oeed 'three  days 
before  the  specified  time,  (V  was  held  that  A  had  not  complied 
with  his  covenant,  and  could  not  maintain  an  action  against  B 
dthough  he  had  declared,  when  the  deed  was  tendered,  that  he 
lid  not  intend  to  comply  with  his  covenant.  1  fatter  v.  Alien, 
')  Jones,  58. 

35.  A  covenant  containing  the  term-rot'  the  hiring  of  a  slave, 
and  providing  that  the  slave  is  ''not  to  go  out  of  the  State,"  does 
act  mean  that  the  party  is  to  prevent  the  slave  from  going  out 
of  the  State  at  all  events,  and  under  all  circumstances,  but  to 
fori  iid  him  from  taking  the  slave  out  of  the  State  to  work,  and 
to  bind  him  to  use  proper  care  and  reasonable  diligence  to  pre- 


308  GOVENAHT. 

vent  the  slave  from  escaping  beyond  the  limits  of 'the  State. 
Poyner  v.  McBae,  5  .5 ones,  l;7<>. 

36.  Where  A  covenanted  in  writing-,  under  seal,  to  deliver  a 
quantity  of  flour  to  a  partnen  hip  firm,  and  in  the  same  instru- 
ment was  a  stipulation  by  one  of  the  partners  for  the  linn,  and 
Bigm  <!  and  sealed  by  him  in  the  name  of  the  firm,  to  pay  for  the 
Sour,  it  iv  is  lit!-.'  that  an  action  of  covenant  will  lie  on  the  in- 
strument, in  the  name  of  the  firm  against  A,  for  not  delivering 
the  iionr,  e.ven  though  A  could  not  have  an  action  on  the  instru- 
ment either  against  the  firm  or  the  partner  who  professed  to  act 
for  them,  as  he  certainly  c  mid  have  sued  them  in  assumpsit  and 
used  the  instrument  as  "written  evidence  of  their  contract. 
Broion  s    Bosti  ;n,  6  Jo 

37.  A  covenant  to  pay  a  sum  of  money  "in  a  good  note  on 
demand"  is  not  complied  with  by  an  offer  to  deliver  to  the  cov- 
enantee a  sealed  instrument  "payable twelve  months  afterdate," 
made  by  third  person  to  a  stranger  and  not  endorsed.  Gregory 
v.  Dti-.ii r,  (J  Jones,  4. 

38.  Where  the  owner  of  a  tract  ef  land,  of  an  uncertain 
quantity,  covenanted  upon  a  sale  of  it  to  make  a  title  to  it.  upon 
the  covenantee's  paying  a  certain  sum  and  giving-  bond  and 
security  for  the  balance  of  the  purchase  money,  at  a  certain  pri/x, 
per  awe;  it  was  held,  that  an  action  could  not  be  supported  upon 
the  covenant  until  there  should  be  a  survey  of  the  land;  be- 
cause until  then  the  covenantee  could  not  perform  his  part  of 
the  covenant.     Branch  v.  Daniel,  6  Jones,  76. 

39.  It  may  be  that  under  such  a  covenant,  if  the  covenantee 
had  demanded  a  .joint  survey,  and  the  ether  party  had  refused, 
he  might   have  sued  without  an  actual  survey.      Ibid. 

40.  Where  one  covenanted  to  hire  out  slaves  in  pairs  as  saw- 
yers at  a  certain  price  per  month,  to  be  delivered  in  pairs  on 
several  specified  days,  and  he  (ailed  to  deliver  them  on  the  days 
named,  but  he  delivered  two  pairs  afterwards  and  failed  to  de- 
liver the  third  pair  altogether,  it  was  held,  that  these  stipula- 
tions were  several  and  divisible,  and  that  the  hirer  was  entitled 
•to  recover  on  the  covenant  for  the  hire  of  the  two  pair  of  slaves, 

which  had  been  delivered  .and  accepted.     Johnson  v.  Dunn,  (i 
dmies,  122. 

11.  Where  it  was  covenanted  that  certain  slaves  should  be 
hired  for  a  year  at  a  certain  price  per  month,  and  it  was  stipu- 
lated that  the  owner  should  have  the  right  to  take  them  away 
whenever  he  should  become  dissatisfied  with  their  treatment, 
and  there  was  a  further  stipulation  to  refer  matters  in  dispute 
between  the  parties  to  a  reteree,  it  was  held,  that  the  agreement 
to  refer  did  not  prevent  the  owner  from  exercising  his  discre- 
tion as  to  taking  the  slaves  away,  and  that,  therefore,  he  might 
recover  for  the  time  the  slaves  had  remained,  though  he  did 
take  them  away  before  the  end  of  the  year.     Ibid. 


COVENANT— CREEKS.— CURRENCY.  309 

42.  Words  strictly  of  "covenant,"  contained  in  a  deed,  will  not 
be  construed  into  the  grant  <  fan  ease  incut  in  land,  unless  there  is 
something  in  the  context  to  force  them  from  their  ordinary 
meaning.  Hence,  where  the  bargainee  of  a  mill,  for  himself  and 
his  heirs,  "covenanted  and  agreed"  with  the  bargainor,  that  lie 
and  his  family  should  have  their  corn  ground  toll  free,  it  was 
hell  thai  ii  was  to  be  i . ■  I  en  as  a  covenant  and  not  the  grant  of  an 
easement.     Blount  v.  Harvey,  6  Jones,  186. 

43.  Where  the  mother  and  father  of  an  illegitmatt  child  en- 
tered into  a  covenant,  whereby  the  mother  bound  herself  to 
keep  and  edueate  it,  until  it  became  twenty-one  years  of  age, 
and  the  father  bound  himself  to  pay  her  a  stipulated  sum 
monthly  for  so  doing;  with  a,  provision 'that,  if  the  father  should 
■•In  comi  dissatisfied  with  the  manner  of  its  education  and  treat- 
ment," he  might  take  possession  of  the  child  and  cease  to 
make  the  payments;  it  was  held,  that  in  order  to  get  rid  of  the 
obligation  to  pay,  the  father  must  show  Chat  lie  had  reasonable 
oolusi  for  dissatisfaction.     Frolick  v.  Sclwrmald,  7  Jones,  427. 

44.  A  covenant  made  by  one  of  the  children  of  a  devisor,  who 
was  supposed  to  have  received  more  than  his  share  of  the 
estate,  thai  hi  would  pay  to  the  executor  such  sum  of  money  as 
would  make  the  shares  of  the  children  all  equal,  is  not  broken 
until  all  the  property  is  soft  ami  it  is  ascertained  what  is  the 
share  to  which  each  will  bec<  me  entitled.  Gline  v.  Latimoore,  1 
Winst..  207. 

See  (Apprentice,  6-7-8-9-10^18.)  (Assignment,  3-4.)  (Land- 
lord and  Tenant,  15-16.)  (Warranty — Of  real  estate.)  (War- 
ranty— Of  personal  property,  10-19.)  (Warranty — Of  the  action 
upon  a  warrant;,- and  the  ■  •  i      uce  fcosupportit,  13-14-17-19-20.) 


CHEEKS. 

See  (Rivers  and  Creeks.) 


CURRENCY. 

1.  Payments,  made  in  the  depreciated  currency  prior  to  1783, 
shall  discharge  the  same  numerical  sum' as  their  numerical 
value.  Aw&nymous  1  Hay.,  183,  (211.) 


310  CURRENCY.— CURTESY.— CUSTOM. 

2.  In  an  action  of  covenant  for  a  certain  sum  in  silver  or 
Spanish  milled  dollars,  the  jury  were  instructed  to  give  the  real 
value  in  our  depreciated  paper  currency.  Winslow  v.  Bloom,  1 
Hay.,  217,  (248.) 

3.  In  an  action  upon  a  contract  for  money,  the  jury  are  to 
assess  the  real  value,  at  the  time  of  the  verdict,  of  the  currency 
called  for  by  such  contract.     Anonymous,  1  Hay.,  354,  (405.) 

4.  Contracts  in  depreciated  currency  should  be  scaled  accord- 
ing to  the  rate  existing  at  the  time  the  contract  was  made. — 
Hamiltonv.  Person,  2  Hay.,  23(5,  (418.)     S.  P.  Bruton  v.  Buttock, 

,Conf.  Rep.,  372,  (448.) 

5.  It  seems  that  the  jury,  and  not  the  court,  shall  apply  the 
scale  of  depreciation.  Hamilton  v.  Bnll-iel;  2  Hay..  240, 
(425.) 

3.  The  6th  sec.,,  eh.  36  of  the  Rev.  Code,. making  it  a  misde- 
meanor "to  pass  and  receive"  bank  notes  under  the  denomina- 
tion of  three  dollars,  dues  not  apply  to  the  bank  "which  issues 
them.  The  punishment  prescribed  against  the  hank  is  a  penal- 
ty of  fifty  dollars, ;  for  making  mid  issuing  notes  of  a  less  denomina- 
tion than  three  dollars,  under  the  3rd  section  of  the  act.  State  v. 
Bank  of  Fayetteville,  3  Jones,  450. 

7.  Under  the*Rev.  Code,., eh.  36,  sec,  6,  an  individual  is  indict- 
able  for  passing  or  receiving,  since  the  1st  day  of  January,  1856, 
a  bank  bill,  issued  by  the  bank  of  Fayetteville  of  a  less  denomi- 
nation than  three  dollars.  State  v.  Matthews,  3  Jones,  451. — 
.(The  penalty  and  the  liability  to  indictment  under  this  section 
are  repealed  by  the  act  of  18,56,  ch.  21.) 

See  (Constitution  —Acts  which  have  been  declared  constitu- 
tional, 14.)  -(Constitution — Construction  of  various  clauses  of 
the  Consitution,  24.)  (Indictment — In  what  cases  an  indict- 
ment will  lie,  41.) 


CURTESY. 

§ee  (Alien— As  jo  an  alienjholding  lands,  Ilk) 


CUSTOM. 

I.  No  custom   can  be  recognized  as1  having  grpwn  up  in  this 


CUSTOM.— DAMAGES.— I.  311 

State,  the  effect  of  which  is  to  supersede  the  common'  law. — 
Winder  v.  Blake,  4  Jones,  332. 

See  '•'(Evidence. — Parol    evidence     when    admissible.     37, ) 
(License,  5.) 


DAMAGES 

I    When  ihe  law  gives  damages.  III.  What  vill  increase  or  mitigate  dam- 

II    By"  nat  rule  damages  are  to  he.  as-  |  ages. 

■  ssed.  I  IV.  Whether   damages  be   penal   or  li- 

(fuidated. 

I.       WHEN    T1IF.    LAW    GIVES    DAMAGES. 

1.  For  the  breach  of  all  valid  i  ontracte,  when  proved  to  the 
satisfaction  of  a  jury,  the  law  requires  some  damages  to  be 
aagi  seed;  and  although  no  real  loss  be  proved,  nominal  damages 
at  least  must  be  given.     Clinton  v.  Mercer,  3  Murph,,  119.  _ 

2.  J .  man  shall  not  recover  a  recompense  in  damages  tor  an 
injury  received  by  his  own  consent,  provided  the  act  from  which 
the  injury  is  received  be  lawful;  but  when  two  persons  light  by 
Consent»and  one  is  beaten,!'  may  recover  damages  for  the 
injury,  because  the  lighting  is  an  unlawful  act.  Stout  v.  Wren, 
lB»wks,420. 

3.  Damages  cannot  be  recovered  for  the  less  merely  of  a  good 
bargain.     Fagan  v.  Newborn,  1  Dev.,  20. 

4  Damages  cannot  b«  recovered.\in  debton  a  penal  statute, 
but  it  is  not  error  to  demand  them.  If  they  be  assessed  by  the 
jury,  judgment  will  be  revi  is  ■<]  as  to  them.  Dowd  v.  Seaivefflj 
3  Dev.,  185.     S,  P.,  West  v.  Batledge,  4  Dev.,31. 

5.  Whence  violation  of  a  contract  involves  a  breach  of  duty, 
so  as  to  sustain  case  fo]  the  tort,  Hie  law  always  gives  nominal 
damages  at  the  least,  if  none  other  be  proved.  Willis  v.  Hilton, 
2  Jwraes,  149. 

&  e  (Detinue — Of  the  pleadings,  evidence,  verdict,  judgment 
am.  execution,  14.)  (Ejectment — Trespass  for  mesne  profits  14*) 
(Estoppel — By  matter' of- record,  7.) 

II.     v3Y   TVIIAT    RULE  DAMAGES    TO    BE    ASSESSED. 

1.  "Where  one  sold  a  negro   and  agreed  that  he  would  make 

good  the  damages,  which  the  purchaser   might  sustain  in  a  suit 

...bscyjght    by  a  third  person  toi  recover  him,  held  that  upon  the 


312  DAMAGES.— II. 

recovery  against  the  purchaser,  he  was  entitled,  as  against  the 
vendor,  to  the  value  of  the  negro  at  the  time  of  the  recovery  by 
the  third  person,  and  not  to  the  present  value.  Sanders  v.  Ham- 
ilton, 2  Hay,  282,  (458.) 

2.  For  the  loss  of  a  cargo  by  the  captain's  misconduct,  the 
value  of  it  at  the  port  where  it  was  received  should  be  given  as 
the  amount  of  the  damages.  Howard  v.  Boss,  2  Hay.,  333, 
(508.) 

o.  Where  one  binds  himself  to' procure  a  tract  of  land  for  an 
infant  by  the  time  lie  should  come  of  age,  upon  a  failure  to  do 
so,  tlie  damages  shall  be  given  according  to  the  value  of  the 
land  when  the  infant  comes  of  age.  Howai  1  v.  Person,  2  Haw. 
336,  (512.) 

4.  If  a  marshall  or  sheriff  seize  property  in  execution,  and  neg- 
lect to  sell  it,,  and  is  sued  for  his  neglect,  the  plaintff  shall  ree.  iver, 
as  damages,  the  amount  for  which  the  property  would  have  sold. 
Dunlap  v.  West  2  Hay.,  346,  (.530.) 

5.  In  an  action  of  trespass  fur  entering  the  plaintiff's  close  and 
taking  his  oysters  and  making  profit  of  the  shells,  the  proper 
rule  of  damages  is  the  clear  profits  made  by  the  defendant. 
McKenzie  v.  Hulet,  X.  C.  Term  R.,  181,  (613.) 

(i.  The  amount  of  damages  to  be  given  upon  the  breach  of 
covenant  to  build  a  house  of  good  materials,  and  in  a  workman- 
like manner,  is  not  the  value  of  the  house  covenanted  to  be 
built,  but  the  difference  in  i*alue  between  sach  a  house,  and  the 
house  actually  built,  unless  ■the  materials  and  work  nan  ship  be 
so  inferior  as  to  be  of  little  or  no  value.  Tvntty  v.  Mc&uive,  3- 
Murpk,  501. 

7.  Where  a  man's  possession  has  been  invaded,  and  his  crop 
exposed  to  injury  under  circumstances  of  aggravation,  the  jury 
may  properly,  under  instructions  to  that  eftest  from  the  court, 
give  the  highest  price  which  the  crop  destisoyed  was  worth. 
Dvnhij  v.  Hairston,  1  Hawks,  315. 

8.  In  debt  on  a  guardian  bond  witli  a  penalty  of  £1000,  the 
damages  were  laid  at  £100,  but  the  jury  gave  more  than  that 
sum;  it  was  held  that  to  the  extent  of  the  penalty  of  the  bond 
the  obligee  might  recover  damages  for  its  breach;  that  the  same 
judgment  should' be  entered  on  the1  verdict  as-  before  the  Stat.  8 
and  9,  Will.  3,  that  is, .to  recover  the  penalty  and  nominal  dam- 
ages for  the  detention  of  it,  and  for  costs;  that  the  execution 
must  still  issue  for  the  amount  of  the  judgment,  but  must  be 
endorsed  to  levy  only  the  amount  ©f  the  damages  assessed  for 
the  breach  of  the  condition,  and  the  costs.  Hence,  it  is  not 
material  what  damages  are  laid  in  the  declaration,  provided  the 
damages  do  not  exceed  the  amount  of  the  penalty.  Claney  v. 
Dickey,  2  Hawks,  496.     (See  Rev.  Code,  oh.  31,  .sec.  58.) 

9.  In  an  action  of  covenant,  for  not  furnishing  machinery  for' 
a  ateani.inilbatthe  stipulated  time,  the  plaintiff,  cannot,  recover: 


D&MAGES.— II.  313 

in  damages  the  estimated  value  of  the  profits  he  might  have 
made,  if  the  covenant  had  been  complied  with  They  are  too 
vague  and  uncertain  to  form  any  criterion  of  damages.  Boyle 
v.  Seeder,  1  Iivd.,  607. 

10.  The  damages,  in  such  case,  should  be  given  upon  the 
principle  of  a  reasonable  rent  and  insurance  for  the  buildings, 
and  the  actual  loss  by  decay,  &c,  of  the  materials,  during  the 
period  he  was  prevented  from  commencing  his  operat) 
reason  of  the  default  of  the  defendant  in  not  complying  with 
his  covenant.  He  can  only  recover  damages  n  dnedby 
him,  and  not  such  as  it  ssible  lie  may  have  sustained. 
Ibid. 

11.  In  an  action  on  the  case,  unless  the  injury  complained  of 
be  of  such  a  nature  that  actions  can  be  brought  from  time 
to  time,  the  jury  may  assess  all  the  damages  the  plaintiff  has 
sustained  up  to  tiie  time  of  the  trial;  and  they  are  uot  con- 
fined to  the  dam  i  itained  previous  t  i  the  date  of  the  writ. 
DaUey  v.  Dismal  Swamp  Ca  222. 

12.  In  actions  for  breach  of  contract,  where  there  is  no  stat- 
utory provision  or  express  agreement  of  the  parties  on  the  sub- 
ject, the  person  injured  should  he  reimbursed  in  damages  what 
he  has  lost;  and  if  no  loss  be  shown  by  proof,  should,  be  reim- 
bursed to  the  extent  of  the  loss  which  die  law  presumes.  State 
v.  Ski       r,  3  (red.,  564.  * 

13.  In  an  action  for  enticing  away  an  apprentice,  the  plaintiff 
is  entitled  to  recover  damages,  as  for  a  total  less  oi  his  services, 
if  a  total  loss  had,  in  reality  been  tli'-  consequence  of  t!  e  . 

the  defendant;  if  not,  then  die  damages  should  be  i  fcimated 
according  to  the  chances  the  plaintiff  had  of  regaining  ids  ap- 
prentice.    McKay  v.  Brij-s<tit.  5  [red.,  216. 

14.  When  a  contractor  foE  keeping  a  public  bridge  in  repair 
commits  a  breach  of  his  contract,  and  the  county  court  has 
caused  the  necessary  repairs  to  be  made,  the  rule  of  damages,  in 
an  action  for  the  breach,  is  tHe  value  of  the  repairs  needed,  and 
not  tiie  sum  the  county  court  may  have  paid  for  them.  State  v. 
Ingram,  5  Ired.,  441. 

15.  In  actions  fit'  trespass  for  the  destruction  of  property,  the 
proper  measure  of.  damages  is  the  value  of  the  property  destroy- 
ed, unless  the  trespass  is  committed  wantonly  or  malicii  msly, 
when  the  jury  may,  i:'  they  think  proper,  give  vindictive  dam- 
ages; but  that  is  a  matter  for  them  to  decide,  and  not  for  the 
court.      Wylie  v.  Smitherman,  8  Ired.,  236. 

16.  In  an  action  of  slander  the  jury  may  give  exemplary  dam- 
ages.    Gilreath  v.  Allen, .10  Ired.,  67. 

17.  Were  a  contract'  was,  to  have  the  repairs  of  a  vessel  done 
by  the  ifet  of  June,  but;  the  plaintiff  did  not  apply  for  her  until 
the  otlnaf  July,  and  the  repairs  were  not  then  finished;  it  way 
Iteld,  that  he  was  entitled  to  recover  what  the  vessel  w<.v,ald .have 


314  •  DAMAGES.— II. 

earned  in  freight  from  the  1st  of  June  until  she  was  delivered, 
the  objection  being  only  to  the  time^  and  not  to  the  freight,  as  to 
the  measure  of  damages.     Sikes  v.  Paine,  10  Ired.,  280. 

18.  In  an  action  against  the  representative  of  a  deceased  per- 
son, who  had  committed  a  trespass  on  the  property  of  the  plain- 
tiff, the  plaintiff  cannot  recover  vindictive  damages,  no  matter 
how  aggravated  the  trespass  may  have  been.  Bipju/\.  J/illir. 
11  Ired:,  247. 

19.  Where  work -is  done  under  a  special  contract, ;  and  not 
completed  within  the  time  limited,  but  is  carried  on  after  the 
day.  with  the  assent  of  him  for  whom  it  was  done,  the  party 
contracting  to  .do  the  work  is  confined,  under  the  common 
count,  to  the  rate. of  compensation  fixed  by  the  contract,  when 
no  further  special  contract  is  made.  The  rule  to  ascertain  the 
damages  is,  if  the  work  contracted  for  is  worth  the  sum  agreed 
on.  what  is  it  worth  as  done.  Farmer  v.  Francis,  12  Ired., 
282. 

20.  In  an  action  <  f  trespass  for  cutting  down  timber  trees,  the 
rule  of  damages  is  the  value  of  tin-  timber  when  t1  is  first  cut 
down  and  becomes  a  chattel.  But  this  rule,  it  seems,  is  not  ap- 
plicable to  cases  of  cutting  down  ornamental  trees,  oi  where  the 
trespass  is  attended  with  circumstances  of  aggravation.  Ben- 
nett v.  {Thompson,  V,-  [red.,  llC. 

21.  In  an  action  on  the  case  for  a  malicious  arrest  in  a  civil 
suit,  the  jury  may  give  exemplary  damages.  Bradley  v.  Morris', 
Busb.  395. 

22.  Where  A  contracted  to  purchase  cotton  of'B,  for  the  price 
at  which  it  sold  at  Petersburg  on  the  25th  of  April,  and  A  after- 
wards refused  to  receive  a  portion  of  the  cotton,  and  B  sold  it  at 
Petersburg  on  the  9th  of  August  following,  it  was  held,  in  an  ac- 
tion by  B  against  A,  for  a  breach  of  the  contract,  that  the  rule 
of  damages  was  the  difference  between- the  market  price  of  cot- 
ton at  Petersburg  on  the  25th.  of  April  and  the  9th  ef  August. 
Clifton  y.  Newsom,  1  Jones,  108. 

23.  In  trespass  for  destroying  property,  the  jury  may  give,  as 
damages,  the  value  of  the  property  increased  by  the  interest 
thereon  from  the  time  of  its  destruction.  Bippij  v.  MEler,  1 
Jones,  479. 

24.  In  an  action  on  the  case  for  enticing  .away  an  apprentice, 
where  there  has  not  been  an  entire  less  of  him, -such  as  'the 
carrying  him  away  to  a  distant  country,  the  jury  cannot  give 
damages  for  the  loss  of  his  services  after  the  tinie-,when  the  suit 
was  commenced.     Moore  v.  Love,  3  Jones,  215. 

25.  The  subject  of  prospective  damages,  (that  is,  such  as  may 
accrue  up  to  the  time  of  the  trial  after  the  suit  commenced,)  dis- 
cussed, and  the  distinction  pointed  out  between  the  cases  where 
such  damages  may  be  given,  and  those  cases  where  they  are  not 
allowed    _Zbid 


DAMAGES.— II.  315 

26.  In  an  action  on  the  case  for  ponding  water  on  the  plain- 
tiff's land  by  obstructing  a  ditch,  the  jury  cannot  give  damages 
accruing  subsequently  to  the  commencement  of  the  suit.  Shaw 
v.  Etheridge,  3  Jones,  300. 

27.  Where,  on  the  sale  of  a  stallion,- the  contract  was  that  the 
purchaser  should  give  the  earnings  of  the  horse  at  two  particu- 
lar stands  as  a  part  of  the  price,  which  were  estimated  to  be 
equal  to  $100,  am'  the  purchaser  failed 'to  let  the  horse  stand  at 
those  two  places  ;  if  was  h  fa,  in  an  action  for  the  balance  due  on 
the  price  agreed  to  be  paid, -the  jury  might  assess  the  damages 
for  the  supposed  earnings, -at  the  two  stands,  at  $100.  Benson 
v.  Chastine,  3  Jones,  550. 

28.  In  an  action  of  trespass  '//'an  clausum  fregit,  for  entering 
upon  the  plaintiff's  land  and  cutting  down  182  timber  trees,  the 
jury  may  give  more  than  nominal  damages,  to-wit:  the  amount 
of  the  real  injury  done,  though  the  trees  were  not  taken  away. 
Archibald  v.  Davis,  1  Jones,  133. 

29.  The  measure  of  dan, ages  against  a  vendee  for  refusing  :to 
perform  his  part  of  the  contract  for  the  purchase  of  landit-u- 
vendoi'  haying  offered  to  perform  all  that  the  law  require  of 
him)  is  the  purchase  money  with  interest.  Garrard  v.  DoRar, 
4  Jones,  175. 

30.  In  an, action  for  the  breach  of  a  covenant  to  teach  a  stave 
apprentice  a  trade,  the  sum,  which  would  have  been  added  to 
the  value  of  the  slave  had  he  been  properly  tan- lit,  is  the  proper 
measure  of  damages  to  be  assessed.     BeU  v.   Walker,  5  Jones,  43. 

31.  Where  it  was  agreed  between  the  owner  of  a  rice  mill  and 
a  planter,  that  if  the  latter  would  bring  his  rice  ■  to  the  mill  of 
the  former,  he  would  surrender  to  him  the  turn  to  which  he, 
the  owner,  was  entitled,  in  having  his  rkx  beat  v.  hereupon  the 
planter  brought  his  rice,  but  it  was  not  ground  in  the  turn 
agreed  upon,  and  while  awaiting  another  turn  it  was  burned 
up  with  the  mill;  it  was  held,  in  an  action  for  the  breach  of  the 
agreement,  that  the  damages,  for, the  loss  of  the  rice  were  tod 
remote  to  be  taken  into  consideration  in  the  verdict  of  the  jury. 
Ashe  v.  DeBossett,  5  Jones,  299. 

32.  In  an  action  of  trespass  tc  land,  if  was  held  not  to  be  error 
in  the  court  to  say,  -that  the  plaintiff  was  entitled  to  recover 
damages  for  the  loss  lie  had  sustained,  if  that  loss  was  imme- 
diately connected  with  the  act  of  the  defendant."  Sanderlin  v. 
Shaw,  6  Jones,  225. 

33.  In  an  action  of -trespass  fin  the  destruction  of  a  growing 
crop,  the  jury,  upon  the  question  of  damages,  may  take  into 
consideration  what  the  price  of  the  article  would  have  been  in 
its  matured  condition.     Ibid. 

34.  Where  one  person  built  a  house  on  the  land  of  another,  so 
near  the  house  of  the  owner  as  to  darken  it,  and  otherwise 
greatly  impair  its  value,  it  was  lo  Id  in  an  action  for  the  trespass, 


316  DAMAGES.— II.-III. 

the  jury  were  not  at  liberty  to  give  vindictive  damages.  Hays 
v.  Askew,  7  Jones,  272. 

35.  Where  a  railroad  company  was  guilty  of  negligence  in 
not  forwarding  a  piece  of  machinery  to  the  plaintiff',  whereby  his 
mill  was  kept  idle,  it  was  held,  that  the  measure  of  damages 
was  riot  what  it  was  estimated  the  mill  might  have  made  had  it 
not  been  kept  idle,  but  the  legal  interest  on  the  capital  invested, 
the  j nice  of  the  hire  of  hands  necessarily  unemployed  during 
the  time,  the  cost  of  sending  after  the  missing  machinery,  and 
any  other  damage  which  was  the  direct  and  necessary  result  of 
the  defendant's  negligence.  Foard^r.  Atlantic  and  North  Caro- 
lina Railroad  Compuny,  8  Joue  \,  235. 

36.  The  provision  in  the  3rd  si  ction  of  the  78th  chapter  of  the 
Revised  Code,  giving  the  whole  amount  of  debt  as  damag 

the  failure  of  an  officer  to  collect  a  claim  put  into  his  hands  for 
collection,  when  the  debtor  is  solvent,  only  applies  to  claims 
within  the  jurisdiction  of  a  justice  of  the  peace,  and  dues  not 
apply  in  cases  of  the  non-collection  of  process  issuing  from  a 
court  of  record.     McLaurin  v.  Buchanan,  1  Winst,  91. 

See  (Assumpsit — When  it  will  or  will  not  lie,  59.  (Assumpsit 
—  Pleadings,  evidence  and  judgment,  3.)  Bills  of  Exchange  arid 
Promissory  Notes — Damages.)  (Corporations — <  If  particular  cor- 
porations, L4.)  (Covenant,9  10.)  (Damages — What  will  increase 
or  mitigate  damages.)  (Executors  and  Administrators — Of  their 
liability  to  creditors,  &c,  59.)  (Fraud— In  the  removal  of 
debtors,  7)  (Guardian  and  Ward — Liability  of  Justices  for  taking 
insufficient  sureties  on  the  appointment  of  a  guardian,  2.)  (Master 
and  Servant,  2.)  (Trespass — Of  trespass  quare  claiisum  fregit, 
13-21-26-29-38-40-43.)  (Trover— When  it  will  lie,  13.)  (Vendor 
and  Purchase]',  5.)  (Warranty — Of  personal  property,  2;>.) 
(Warranty — Of  the  action  upon  a  warranty  and  the  evidence  to 
support  it,  4.)  Warranty — Of  the  damages  to  be  recovered.) 
(Widow— Of  her  dower,  0-13.) 

HI.       WHAT   WILL    INCREASE    OR   MITIGATE    DAMAGES. 

1.  Previous  threats  may  be  given  in  evidence  to  increase  the 
damasres,  in  an  actions  for  assault  and  battery.  Sledge  v.  Pope,  2 
Hay..' -1(12.  (£07.) 

2.  In  an  action  for  an  assault,  any  immediate,  but  not  any  re- 
mote provocation  may  lie  given  in  evidence  to  mitigate  dama- 
ages.  Barry  v.  Ingles,  2  Hay.,  102,  (262.)  S.  C,  Tay,  121, 
(7.2.) 

3.  In  assessing  damages  for  the  noiv-performance  of  a  contract, 
the  standing  of  the  parties  is  entirely  immaterial,  and  is,  there- 
fore, inadmissible  as  evidence.  Rowland  v.  Dowe,  2  Murph.,  347. 
S.  O,  N.  C.  Term,  R.  302,  (722.) 

4.  In  an  action  for  a  malicious  prosecution  for  a  felony,  the 


DAMAGES— III.  317 

defendant  may  give  in  evidence,  in  mitigation  of  damages,  that, 
after  the  prosecution  instituted  by  him,  the  character  of  the 
plaintiff  was  bad,  upon  subjects  unconnected  with  the  felony,  for 
which  he  was  prosecuted  Bostick  v.  Rutherford,  4  Hawks, 
83. 

5.  In  an  action  of  trespass  to  try  the  right  of  the  plaintiff's 
freed  nn.  the  amount  of  damages  is  within  the  discretion  of  the 
jury,  and  it'  it  be  shown  that  the  plaintiff's  mother,  a  free  wo- 
man, had  been  bound  by  indentures  to  the  <i  I  lather, 
and  the  plaintiff  given  to  the  defendant  aw  a  slave,  sul  stantiaJ 
damages  may  be  given.      Scott  v.   Williams,  1  Dev.,     i  I 

6.  In  the  action  of  trespa  -  vi  et  armis  for  the  destruction  of, 
or  injury  to,  chatties,  the  jury  are  not  restricted  in  i1- eir  assess- 
ment of  damages  to  the  mere  pecuniary  loss  sustained  by  the 
plaintiff,  but  may  award  damages  for  the  malicious  conduct  of 
the  defendant,  and  the  degree  of  insult  with  which  the  trespass 
was  committed.     Duncan  v.  Stalcim,  1  Dev.  and  Bat.,  440. 

7.  In  anaction  for  an  assault  and  battery,  the  plaintiff  usually, 
and  as  a  general  rule,  has  a  right  to  i  xpeci  a  fair  compensation 
in  damages  for  the  injury  really  sustained;  but,  in  addition  to 
this,  the  .jury  may  be  sometimes  '-ailed  upon  to  give  exemplary 
damages  by  way  of  punishment,  when  it  appears  thai  the  de- 
fendant was  actuated  by  malice  and  a  total  disregard  of  the 
laws,  and  the  plaintiff  was  in  no  wise  to  blame.  Causee  v.  An- 
ders, 4  Dev.  and  Bat,  246. 

8.  In  an  action  of  trespass  for  talcing  a  slave  out  of  the  imme- 
diate possession  of  the  plaintiff  evidence  of  abusive  language 
to  the  plantiff,  at  the  time  of  the  trespass,  is  admissible  to  show 
quo  animo  the  act  was  done,  in  order  to  enhance  the  damages. 
Bailiff  v.  Huntly,  5  Ired.,  545. 

9.  In  an  action  of  slander,  where  it  appears  that  the  defend- 
ant was  drunk  when  he  uttered  the  words,  this  may  go  in  miti- 
gation of  damagi  s,  as  tending  to  rebut  malice.     But  where  it 

appears  that  he  repeated  the  charge,  both  when  drunk,  and  when 
sober,  on  public  and  private  occasions,  his  being  drunk,  at  the 

particular  time  alleged,  is  no  reason  lor  abating  the   damages. 

Howell  v.  Howell,  10  Ired.,  84. 

10.  The  fact,  that  a  blow  was  given  in  the  presence  of  a  court 
while  in  session,  may  be  given  in  evidence  in  aggravation  of 
damages,  though  the  act  might  have  also  been  punished  by  the 
court  as  a  contempt.     Pendleton  v.  Davis,  1  Jones,  98. 

11.  In  trespass  or  trover  the  defendant  cannot,  for  the  purpose 
of  diminishing  the  damages,  avail  himself  of  any  thing  which 
lessens  the  value  of  the  property  while  in  his  wrongful  posses- 
sion.     Carter  v.  Strerder,  4  Jones,  62, 

12.  Where  the  loss  of  an  eye  was  the  direct  and  immediate 
consequence  of  exposure,  to  which  the  plaintiff  was  subjected  by 
removing  the  roof  of  his  house,  it  was  held  that  it  might  be 


318  DAMAGES.— ffl.-IN. 

taken  into  consideration  to  increase  the  damages  in  the'action 
of  trespass  quare  daimim  fregiw  Hatchwdl  v.  Kimbrouijh,  4 
Jones,  163. 

13.  On  an  inqvfest  of  damages  upon  a  judgment  by  default, 
nothing  that  would  have  amounted  to  a  plea  in  bar  of  the  action 
can  be  given  in  evidence  to  reduce  the  damages.  Gari'ard  v. 
Dollar,  4  Jones,  175. 

14.  Where  an  officer,  acting. under  color  of  process,  took  tho 
occasion  to  wreak  his  vengeance  on  a  person  and  his  family,  by 
harrassing  and  insulting  them,  the  jury  may  properly  be  in- 
structed that  they  have  the  right  to  give  vindictive  damages. 
Louder  v.  Hinson,  4  Jones,- 3(H). 

15.  Upon  a  special  contract  to  deliver  an  article  of  a  certain 
description,  upon  which  an  action  is  brought,  the  damages  can- 
nut   be  reduced  by  showing  that' the  article  was  of  an  inferior 
quality.     It  is  otherwise  where   tl  e  party-has  to  resort   to   a; 
quantum  valebat  or  quantum  meruit.     McMigatd  v.  McFadgin,  6  ' 

lours,  89. 

Hi.  On  the  trial  of  a  civil  action  for  assault  and  battery,  it  iff 
sompetent,  for  the  purpose  of  mitigating  vindictive  damages,  to 
show  that  the  defendant  has  been  convicted  and  punished  upon 
an  indictment  for  the  same  offence.  Smitheriek  v.  Ward,  7 
ione^  64. 

17,  It  is  not  competent,  in  such  a  suit,  to  prove  that  the  plain- 
tiff is  a  turbulent  man  and  ot  a  desperate  disposition;  nor  that 
the  defendant  is  a  quiet  man  and  of  peaceful   demeanor.     Ibid. 
See  (Ejectment — Trespass  for  mesne  profits,  (1.) 

P  WHETHER    DAMAGES     BE    PENAL    OR    LIQUIDATED. 

1.  The  omission  of  the  word  "penal;"  in  stating  the  damages 
which  either  party  might  recover  for  the   breach  of  a  covenant, 
as  for  instance  a  covenant  for  conveying  title,  does  not  necessa-  ' 
rily  make  the  sum  mentioned  liquidated   damages.     Lindsay,  v.1 
Aneshy,  (3  'red.,  186. 

2.  Whether  the  sum  mentioned  bs*  merely  a  penalty,   or  be' 
liquidated  damages,  must  depend  upoS  the  nature  and  cireuim  ' 
stances  of  each  case.      Ibid. 

3.  The  quantum  of  damages,  in  an-action  of  covenant,  may  be1' 
assessed  by.thc  jury,  when  the  precise  sum  is  not  the  essence  or  '" 
substance  of'  the  agreement.     Ibid. 

4.  Where  an  agneement  was  to  do  three  things  of  different 
degrees  of  importance  and  value,  or  pay  $2,500  as  stipulated  dam- 
ages, and  the  breach-assigned  was  the  not  doing-one  of  the  things  ! 
which  was  readily,  ascertained  in  value,  and  was  clearly  less  '• 
than  the  sum  specified  as  damages/  the  stipulation  was  held  to  ■ 
be  &; penalty.     Thorougligoodv.   Walker,  2  Jones,  15. 

5"  A  contract  to-  pay  a  certan  sum  for  the  lease  of  a  golJ-- 


DAM  AGES.— IV.— D&BT.— I. '  319 

mine,  of  to  return  the  leaee  within  ninety  days,  will  be  construed 
a  penalty,  and  not  an  agreement  to  pay  the 'sum  specified-  as 
stipulated  damages.     Barrage  v.  Grumpj-B  Jones,  330. 

(5.  If  there  be  only  one  event,  on  which  money  is  to  become 
payable  on  a  contract,  and  there  be  no  adequate  means  of  ascer- 
taining the  precise  damage  that  may  result  to  the  plaintiff  from 
the  breach,  of  the  contract,  it  is  competent  for  the  parties  to  fix 
a  given  amount  of  compensation  in  order  to  avoid  the  difficulty. 
Bingham  v.  Richardson,  1  Winst,,  217. 

See  (Assumpsit, — When  it  will- or  will  not  lie,  30.)  (Contract— 
Construction  of  contrasts,' and  when  an  action  will  lie  30.) 


DEBT. 

I.  "When  the  action  w31  lie.  |  II.  Of  thd  verdict  in  the  action  of  debt: 

'.  •     WHEN    THE    ACTION    WILL    LIE. 

1.  An  action  of  debt  suggesting  devastavit  a  will  lie  against  an  : 
executor,  upon  a  de  *fee  of  the  court  of  chancery  in  Virginia,  to 
be  levied  of  the  goodfcof  the  testator,  and  it  none  then  of  the 
goods  of  the  executofi     Pennington  v.  Hayes,  2  Hay.,  330,  (502.) 

2.  The  action  will  lie  upon  an  iristrumtent,  without  seal,  given 
fur  the  payment  of  money,  Harwood  v.  Crowell  2  Hay.,  396, 
(595,)  S.  P.  Ingram  v.  Hall,  Mar.  1,  (1,)  S.  C.  1  Hay.,  193,  (222.) 

3.  Debt  lies  by  the  payee  against  the  maker  of  a  promissory 
note,  expressed  to  be  for  valufc+received.'  Gardner  v.  Clark  ] 
Murph.,  283. 

4.  In  debt,  on  the  act  of  1 7  "S:"  for  marrying  a  couple  without  ■ 
license,  where  the  writ  demanded  fifty  pounds,  the  penalty  ini- 
posed  by  the  act,  and  the  jury  found  a  verdict  for  twenty  fouf 
pounds  ten  shillings,  it  was  held  to  be- a  fatal  variance.     Dowd,  v 
Seairell,  3  Dev.,  185. 

j.  An  action  of  debt  may  be  maintained  on  an  injuction  bond, 
notwithstanding  the  summary  remedy^  given  by  the  acts  of 
1785  and  1810.  Casey  v.  Giles,  1  Dev.  and'Bat.,  1.  (See  Revised 
( lode,  ch.  32,  sec.  17.) 

(i.  Where  A  handed  a  sum  of  money  to'-!B  for  the  use  0,  and 
took  from,  him  a  written  certificate  expressing,  that  it  was  the 
sum  given  to  6  i»  A'fi  will,  and  obliging  l>t"  nay  the  interest 
to  G  annually,  it  was  held  that  A  had  no  righted  demand  and 
recover  back  the  moneyirom  B.     Parker  v.  Bfoks,  8  Jones,  447 

See  (Covenant  18-19.V, 


320  DEBT. —II.— DECEIT. 

II.       Or   THE    VERDICT  833    THE    ACTION    OF    DEBT. 

1.  In  actions  of  debt  founded  on  specialty  or  contract,  the 
verdict  can  not  be  for  a  less  kebti  than  is  demanded,  unless  it  be 
found  that  a  part  of  the  debt  is  satisfied;  but  in  debt  on  i  stat- 
ute, giving  an  an  !  ftain  sum  by  way  of  penalty,  the  verdict  will 
be  good,  although  a  loss  sum,  than  is  demanded,  is  found  to  In- 
due.    Dozicrr  Bray,  2  Hawks,  57. 

2.  In  debt  the  plaintiff  may  have  a  verdict  for  less  than  he 
demands,  bi  I  the  proof  must  agree  with  his  allegations.  JVaugh 
v.  Chaffin,  3  Dev.,  101. 

3.  in  debt,  the  exact  sum  demanded  in  the  writ  need  not  be 
found  in  the  verdict,  when,  from  the  nature  of  the  demand,  it  is 
urn  ilain.  But  where  the  contract,  as  stated  in  the  declaration, 
conclusively  fixes  the  amount  due,  the  verdict  must  agree  with 
the  writ,  or  the  jadgment  will  be  arrested.  Do\)d  v.  Seawell,  3 
Dev.,  185. 

4.  The  same  principles  apply  to  actions  of  debt  on  penal 
statutes.  If  the  statute  fixes  a  penalty,  to  be  measured  by  refer- 
ence to  some  uncertain  standard,  the  verdict  stands  well  with 
the  declaration,  although  they  do  not  agree;  but  if  the  penalty 
be  certain,  the  very  sum  demanded  by  the  writ  must  be  found 
by  the  jury.     Ibid. 

5.  In  an  action  of  debt  upon  a  penal  bond,  where  tin;  declara- 
tion states  all  the  conditions  to  be  broken,  the  verdict  of  the 
jury  which  finds,  "the  conditions  of  the  bond  "  not  to  have  been 
performed,  but  broken,  need  not  specify  the  particular  breaches 
upon  which  the  damages  are  assessed.  That  is  proper,  only 
when  si  inie  of  the  conditions  of  the  bond  arc  found  to  be  broken, 
ami   others   not  broken.       Gibson  v,  Windsor,  2  Dev.  and    Bat, 


DECEIT. 

See  (Action  on  the  case — Deceit.) 


DEED. 


321 


DEED. 


I.  Of  the  execution  and  date'of  a  deed. 
II.  Of  the  parties  to  a  deed  and  the  cus 
tody  thereof. 

III.  Of  the  consideration. 

IV.  Of  the  presumption  of  a  deed. 


V.  Of  ttie  operation  of  a  deed,  and  when 
it  may  be  avoided  or  not. 

VI.  Of  the  construction  of  deeds  and  their 

various  parts. 

VII.  Of  deeds  in  trust. 


I.       OF   THE    EXECUTION    AND    DAffE    OF   A   DEED. 

1.  An  acknowledgmei  I  by  one  of  two  obligors  that  a  deecl 
was  executed  by  both,  is  not  sufficient   proof  of  its  execution. 

.1  Hay.,  is,  (23.) 

2.  Th  ■  i    tes      ion  of  witne  i.tl  to  a  deed.:  and 

E roof  of  the   grantor's  handwriting   will  be  proof  of  the  sealj 
ut  not  of  the  delivery,  which  i>  to  be  inferred  from  other  cir- 
cumsta  am  v.  Hall,  Mar.   1,   (1.)     S.  C,  1  Hay.,  193, 

(222.) 

3.  The  date  of  a  deed  is  not  of  its  essence,  and  a  party  theret  > 
is  imt  estoppi  d  from  proving,  that  it  was  delivered  on  another 
than  the  day  of  its  date      ''  lav  2  Hay-,  154,  (334.') 

4.  A  delivery  of  the  deed  t(  a  ptj  cl  ad  taking  it  back 
by  the  vendor,  beti  re  registra  rchasemoney, 
will  passthe  title  to  the  vendi  e  I  deed  be  afterwards  regis- 
tered.    Clark  v.  Arnold,  2  Hay.,  287,  j  L67.) 

5.  The  handing  back  of  a  deed,  after  it  has  been  regis!  I, 
dues  not  restore  the  title.  Churchill  v.  Spaight,  2  Hav..  338, 
(515.) 

G.  If  a  deed  1  si  edited  bj  an  attorney,  his  power  must  he 
produce  i.      Ya  I,  Tay.  25,  (19.) 

7.  A  bill  of  sale,  like  other  d  effect  from  its  delivery! 
A  bill  i  :"     --'"  bearing    '                  certain  time,  but  which  was 

I  nbscribi  I    i   -  ::    ■  quent  time, 

delivered  at  such  latt<  r  time,  there  being 
no]         '  i     anv  prior  delivery.     Nichols  v.  Palmer,  2  Car.  L.  R., 
U9.) 

8.  When  an  instrument  is  signed  by  two  persons  with  but  one 
seal  affixed,  ordinarilyit  is  to  be  taken  as  the  deed  of  that  party 
only,  whose  name  is  written  nearest  to  it;  but  it  may  be  shown 
by  proof,  either  on  the  face  of,  or  dehors  the  instrument,  that 
the  other  party  adopted  the  seal.  Yarborough  v.  Monday,  2 
Dev.,  493. 

9.  Two  parties  may  adopt  the  same  seal,  and  then  it  is  the 
deed  of  both;  otherwise  it  is  the  deed  of  one  and  the  simple 
contract  of  the  other;  but  the  question,  whether  both  parties  did 
adopt  the  seal,  is  one  of  fact  and  not  of  law.  Yarborough  v. 
Monday,  3  Dev..  420. 

21 


322  DEED.— I. 

10.  Where  the  bargainor,  Laving  signed  and  sealed  a  deed, 
said  to  the  attesting  witness,  "  I  acknowledge  that  to  be  rriy 
act  and  deed,"  it  was  held,  that  these  words,  being  addressed  to 
one  who  was  not  intended  to  take  possession  of  the  deed,  did 
not  amount  to  a  delivery.     Moore  v.  Collins,  4  Dev.,  384. 

11.  Where,  after  the  deed  was  executed  as  stated  in  the  last 
section,  the  agent  of  the  bargainee  offered  to  take  it  and  carry 
it  to  him,  he  being  out  of  town,  br.t  the  bargainor  objected,  say- 
ing it  might  thereby  !»•  lust,  and  that  In.'  expected  the  bargainee 
back,  and  that  he  himself  would  hand  it  to  him;  ii  was  held, 
that  this  refusal  of  the  bargainor,  to  part  with  the  custody,  de- 
stisoyed  the  effect  of  his  antecedent  words ;  and  thai  the  jury 
could  not  infer  a  delivery  at  the  time  of  the  bargainee's  return, 
but  only  at  the  time  when  the  deed  was  proved  to  be  in  hi-  pos- 
session.    Ibid. 

12.  Where  an  instrument,  purpoi  tingto  convey  lamb  is  si 
sealed  and  delivered,  by  the  grantor  to  the  grantee,  it  is  a  deed 
and  not  an  escrow;  although  the  parties  afterwards   place  it 
will     .third   person  for  safe   keeping,  until  they  both  shall  call 
for  it.     Gibson  v.  Fartee,  2  Dey.  and  Bat,  530. 

13.  Execution  includes  delivery;  and  when  it  is  stated  - 
deed  as  a  fact,  that  '-its  execution  wis  proved."  it    must  be  uu- 

(d  that  such  evidence  was  offered  as  established 
facie  itjs  delivery.  If  it  were,  then  the  production  of  the  deed 
by  (Hie  of  the  grantees,  accompanied  with  testimony  of  long 
possession  under  it,  is  a  very  strong  cirumstance  to  confirm  the 
orimct  facie  proof  of  delivery.  Eoss  v.  Durham,  '■■  Dev.  am! 
Bat.,:)!. 

1\  The  deliver-1;  if  tv.paper,  as  a  deed,  may  be  either  actual 
at  tile  time  of  the  making,  or  I  \  the  donee's  taking  possession 
of  it  as  a  deed  atthe  making?  or  •    iquent  time,  if  done 

with  the  knowledge  and  consenl  of  the  maker.  But  where 
there  were  neither  acts  done  nor  words  spoken  at  the  time  of 
the  making,  from  which  a  .delivery  of  the  paper  as-.a  deed  to  the 
donee,  or  to  any  person  for  him,  could  be  inferred,  ami  the  pos* 
session  of  the  paper  bj  the  donee,  long  afterwards,  was  satisfac- 
torily accounted  for.  it  was  held,  that  there  was  no  evidi  nee  el'  a 
delivery  to  be  left  to  the  jury.  Clayton  v.  Liverrrmn,  4  Dev.  ami 
Bat,,  238: 

15.  V.  Baerea  father  signed  and  sealed,  in  Soutl  Carolina,  a  deed 
for  a  slave  to  his  daughter,  who  resided  in  North  Carolina,  ami 
delivered  it  in  South  Carolina  to  his  b m,  to  he  handed  to  his 
daughter^  was  held  that  the  delivery  was  complete,  and  fcfc 
deed,  therefore,  well  executed  in  South  Carolina.  Morrow  \ 
Ale.  under,  :.'  Lred.,  388. 

10.  A  person  signed  and  sealed  a  deed  for  slaves  to  1'..  called 
npoi:  witnesses  to  attest  it.  ami  acknowledged  that  it  was  hi.;  ad 
5&d_deed;  tic  deed  was  left  on  the  table  and  was  not  again  sei  r 


DEED.— I.  323 

until  after  the  grantor's  death,  about  a  month  after  this  trans- 
action, when  it  was  found  in  Lis  trunk-  among  his-  valuable 
papers;  he  had  previously  said  that  he  intended  to  give  his 
property  to  B,  andjast  before  his  death  said,  "he  was  satisfied 
with  the  way  he  had  disposed  of 'bis  negroes,  the  deed  cf  gift 
was  in  his  trunk,  and  he  wished  it.  delivered  to  B,  immediately 
after  his  death,"  it  was  held  thai  these  circumstances  did  not 
■  ate  a  delivery  of  the  deed,  1  or  even  afford  evidence  tend- 
ing to  show  a  delivery,  which  could  be  submitted  to  a  jury 
Baldwin  v.  Maltsby  6  Ired.,  505. 

17.  Where  there  I  as  been  no  delivery  in  the  lifetime  of  the 
grantor,  a  deliverj  after  his  death,  though  at  his  request, is  void 
Ibid. 

18.  Where  A  and  ~-\.  by  an  instrument  of  writing,   "gave and 

thed"  to  ('  1 1  rtain  slaves,  "to have  and  to  keep  bhe  afore- 
said property  ar  our  death,"  and  it  was  proved  that  the  donors 
intended  this  as  a  deed  of  gift,  and  so  signed,  sealed  and  delivered 
;  I  that  it  was  a  deed  of  gift   and   not  ?.  testamentary 

pap  r      (  layU  n  v.  Liv  rman,  7  lred..  92. 

IV.   In  ar    action  of  debt  on   a   covenant,  proof  of  the  hand 

writing  of  the  obligors,  together  with  possession  1  y  the  oblige* . 

is  evidenc  i  from  which  the  .jury  may  presume  a  delivery  of  tie 

i  the  absence  ol   proof  to  the  contrary.     And  the  circum- 

if  there  b  :ing  three  seals  affixed,  without  any  names  bi  - 

lore  them,  is  uol  sufficient  to  rebut  the  pr<  sumption  of  delivery, 

or  to  show  that  those,  who  did  sign,  did  n<  t  inti  ncl  that  ti 

should  not  be  delivered,  until  the  other  j  ersons  signed  l1       "  ll 

in  ■-.  7  [red.,  384. 

20     Che  delivery  of  a  d lis  a'questibi    of  fad    and 

rescribed  no  particular  tornij'in  which  it  shall  be  made. 
Floyd  v.  Taylor,  12  Ired..  -47. 

21.  When  any  proved  nomatter  I  i  «  -:;  jhl 
or  inconclusive,  from  which  a  delivery  may  be  iuferred,  the  p  irty 
relying  upon  them  has  a  right  to  have  them  submitted  to  a 
jury.     ibid. 

22.  Where  a  deed,  by  a  hsisband  for  a  slave,  was  signed  and 
sealed,  but  not  delivered,  in  the  presence  of  the  subscribing 
witness,  bu1  was  afterwards  delivered  by  the  husband  to  his 
wife   for   the  benefii  of  the  grantee;  it  was  held    first,  that  the 

ry  was  good  and  enured  to  the  benefit  of  the  grantee 
mi.  secondly,  I  Pearson,  .1.  dissentiente,)  that  when  the  deed  was 
signed,  sealed  ami  attested  by  a  subscribing  witness,  a  delivery 
not  in  the  presence  of  the  attesting  witness,  might    be  proved 
by  a.  third  person,  s<    as  to  saiisiy  the  requisitions  of  our  statuti 
relating  to  tie   tram  for  of  slaves.     Gaskitt  v.  King,  12  lred.,  211 

23.  Tli'1  date  ol  a  deed  or  other  writing  is  prima  facie  evidence 
nf  the-  time  ,,t  its  execution,  upon  the  principle"  that  the  acts  of 
every  person,  in  transacting  business  are  presumed  to  be  coo- 


,324  DEED.— 1 

-sisteut  with  truth,  in  the  absence  of  auy  motive  for  falsehood 
Li/rvhj  v.  Wheeler,  12  Ired.,  290. 

24.  Where  a  deei  1  is  delivered  to  a  third  persi  in,  in  the  al  iscnee 
of  the  grantee,  the  latter  is  presumed  to  accept  it,  and  it  tjprth- 
with  becomes  effectual  to  pass  the  property  included  in  it. 
QlcLean  v.  Nelson,  1  Jones,  396. 

25.  To  constitute  a  deed,  the  pa  1  7  executing  it  must  accom- 
pany the  acts  of  signing,  sealing  and  delivering  with  the  inten- 
tion of  mal  '  '  deed.  Hi  ace,  w\v  v  ■  a  per  on  being  drunk, 
and  receiving  a  siun  of  money,  e  1  teds  bond  instead  of  a 
receiptfo]  oient  was  null  and  void. 
Hyman  v.                            tl6. 

26.  A  deed  in  trust  was  made  to  on«  who  had  no  knowledge 
of  its  excution  at  the  time,  bu  afterwards,  on  being  in- 
formed of  the  fact  b)  the  draftsman  of  the  deed,  assented  to 
it,  agreed  to  act  as  truste  .  '  an  agent  to  get  po&- 
session  of  the  properly,  who  had  the  deed  proved  and  regis- 
tered, and   00. led  as  agent  to  demand  and  sue  forth     irpp- 

erty,  and  it  was  held,  that  the  deed  was  duly  delivered,  though 
it  had  never  been  actually  in  the  hands  of  the  bargainee.  Green 
v.  Kornegay,  4  Jones,  66.  ,-,,.■•, 

27.  Thedateof  a  deed,  which  isprovedto  have  been  delivered, 
\s  prima facii  ~  ■  '  ice  hat  it  was  executed  on  the  day  of  the  date; 
but  where  it  is  proved  that  it  was  signed  and  sealed,  but  not 
,j,  [ivered  on  that  day,  it  lias  no  operation  as  a  deed,  until  such 
time  as  it  is  shown  to  have  been  delivered,  and  until  such  time, 
any  declaration  made  byth  grantor,  affecting  the  title,  is  evidence 

.  Inst  a  person  claiming  under  him.  Ntwlin  v.  Osborne,  4 
Jones,  157. 

28.  Where  the  donor,  in  a  deed  of  gift  for  slaves,  took  it  to 
court,  acknowledged  il  and  had  it  registered;  it  was  held  to  be 
a  good  delivery  of  the  de  I,  and  that  a  written  declaration  en- 
dorsed thereon  afterwards,  that  it  had  not  been  .delivered  and 
Avas  not  to  have  an;       feet,  could  not  invalidate  it.     Airey  v. 

:>  Jones,  142.  ..,.-,       ,    ,  .x  ,        ,,  ■   , 

211.  Where  the  donor  in  a  deed  of  gift  handed  it  to  a  third 
person,  signed  and  sealed,  to  have  it  proved  and  registered, 
without  retaining  any  authority  to  control  it,  and  when  it  was 
returned  to  the  donor  he  delivered  it  111  like  manner  and  for  a 
like  purpose,  to  another  1  erson,  who  neglected  to  have  it  proved 
and  registered  until  after  the  donor's  death;  it  was  held,  that  the 
handing  the  deed  to  the  first  person  was  a  complete  delivery,  so 
that  it.  operated  from  that  time.  Phillips  v.  Hoiwkm,  5  Jonee, 
302. 

30.  Where  the  maker  of  a  deed  of  gift  handed  it  to  a  stranger, 
with' instruction  to  hold  it  until  he  called  for  it,  and  died  with- 
out ever  having  called  for  it,  it  was  held  that  there  was  no  de- 
livery of  the  deed.     Bailey  V,  Bailey,  7  Jones,  44. 


DEED.— I.-II.-IIL  325 

31.  Where  there  is  aL  doubt  whether  a  subscribing  wit- 
ness to  an  instrument  signed  before  the  grantor,  it  was  held,  in 
the  absence  of  proof  to  the  contrary,  that  the  presumption  was 
that  the  donor  signed  it  first.  Hughes  v.  Debnam,  8  Jones,  127. 
32.  A  square  piece  6f  paper,  affixed  with  a  wafer  to  an  instru- 
ment, opposite  to  the  name  of  the  grantor,  in  the  place  where 
the  seal  is  usually  placed,  will,  in  the  absence  of  proof  that  fehe 
grantor  intended  otherwise,  be  valid  as  a  seal:     Ibid. 

See  (Evidence — Parol  evidence,  when  admissible  33—15.) 
(Registration,  1-14-23-27-29-33-37  ) 

U.       OF   TIIE    PARTIES    fo    A   DEED,    AND    THE    CUSTODY    THE 

1.  If  one  encourage  the  making 

he  is  bound  by  it  though  it  sh                  aw;  ,  his  own  property 
Hayx.  Spiller,  2  Hay..  155,  i 

2.  The  assent  of  |  d  in  his 
tavor.     Pea.rsex.Ou      ,  '.  ' 

3.  Where  land  is  s<  >ld  witho  .  ith  Warranty  only 
against  the  grant  i                  I  eirs,  the  pi  ill.have  all 

.   he  may  the  bet- 
ad  it  himself.     B  mi  warranty 
and   to  render  in  value,  he  i  title  at  his  peril. 
;                                      I  I                  leeds  that  com- 

d  warrant  y,  advanti 
Nic,     'onv.  ttlliard,  2  Murph.; 

4.  L<<  make  ad 

mail     i  r.)  as  well  as  tl  [easl  such 

-  [red., 
277.     i  21.) 

III.       OF    THE  .    '.TIOX. 

1.  A  deed  which  is  iii  form  a  bargain  .i."'1  pt  that 
the  consideration  is  exj  ed  to  be  love  | 
of  moi  -                     construed  to  be  a  coa  enant 

Slad     :     mith,  1  Hay.,  - 

2.  Ad  ot  operate  i  a  bargain  and  sale,  unless  it  has 
api     iniary  consideration;  noi  ant         tand  seized  to 

iless  the  consideration  be  love  and  affection  for  a  near 
relation,  or  marriage.  Affection  forai  illegitimate  child  is  not 
a-s  sufficient  consideration.  Blount  v  Blount  -J  Car.  L.  H. 
587,  i 

3.  Where  a  deed  for  land  contains  an  acknowledgment  by  the 
bargainor  of  the  receipt  of  tin-  consideration,  and  a  elan.se  exon- 
erating the  bargainee  therefrom,  it  amounts  to  a  release  and  is  a 
bar  to  an  action  for  the  purchase  ateney.  Brt  ■  bet  V.  Fostue,  1 
Hawks.  64 


326  DEED.— III.— IV. 

4.  A  bargain  and  sale  is  good,  although  the  deed  does  not 
express  that  the  consideration  money  has  been  paid.     Ibid. 

5.  A  pecuniary  consideration,  mentioned  in  the  first  part  of  a 
deed  of  bargain  and  sale,  extends  to  any  land  conveyed  in  the 
deed,  to  the  person  who  paid  that  consideration.  Jones  v.  Rvffin, 
3  Dev.,  404 

(3.  A  consideration  of  blood,  appearing  upon  a  deed  inopera- 
tive as  a  bargain  and  sale,  will  make  it  enure  as  a  covenant  to 
stand  seized.     Hatch  v.  Thompson,  3  Dev.  411. 

7.  Where  a  specific  c  msideratiQn  is  se1  forth  in  a  convej 

and  no  others  are  referred  to  in  general  terms,  ik ther  ifa, 

the  specific  one  can  be  averred  an  I  proved.  But  if  one  consid- 
eration be  specified,  and  ethers  referred  to  in  general  terms,  i. 
is  competent  to  show  them  in  evidence;  guicl  where  the  deed 
is  wholly  silent  as  to  the  consideration,  proof  of  the  actual 
consideration  is  admissible.    Jones  v.  Sasser,  1  Dev.  tnd  Bat.,  452. 

8.  Where  one  consideration  is  mention  dothers 
referred 'to,  the  latter,  though  not  specified,  may  be  proved  by 
parol.     Ghesson  v.  Pettijohn,  6  [red.  121. 

See  (Deed     D  ed  in  trust,   14.)     (Evidence — Parol  evi 
when  admissible,  15-20-23.) 

J  OF    THE    PRESUMPTION    OF    A    DEED. 

1.  Where  a  mother  and  her  illegitimate  children  reei  led  upon 
different  parts  <  f  J.  i  same  trad  of  land,  the  latter  under  a  pare; 
agreement  for  a  conveyance  from  their  mother,  subject  t<>  a  life 
cstalc  in  her,  (heir  respective  possessions  are  consistent  with  her 
title,  ami  however  long  continn  d,  no  presumption  of  a  deed 
arises  from  them.     Matthews  v.  Smith,  2  Dev.  and  Bat,  287. 

2.  Any  disability  in  the  owner  is  a  circu  nstance  to  repel  th< 
presumption  arising  from  lone,-  continued  possession,  although 
such  disability  may  have  arisen  since  the  commencement  of  the 
possession.     Ibid. 

3.  A  presumption  of  a  deed,  arising  from  twenty  yi  ars  adverse 
possession,  will  not  be  rebutted  by  the  fact  of  the  heir's  being 
under  disability  at  the  depth  of  the  ancestor,  where  such  lapse 
of  time  had  begun  to  run  against  the  ancestor  in  his  life  time. 
Seaivell  v.  Bunch,  <>  Jones,  195. 

4.  Twenty-one  years  continued  possession  of  land,  the  title  to 
which  is  shown  to  be  out  of  the  State,  claimed  by  the  posses 
sor  under  an  alleged  purchase  from  a  former  owner,  though  he 
is  unable  to  produce  a  deed  from  such  owner,  creates  a  presump- 
tion of  a  deed  to  such  possessor  for  the  land,  against  any  and  all 
persons.     Fireman  v.  Loll  in.  6  Jones,  524. 

See  (Evidence— Presumptions,  H-12-19-2%26-27-30.)  (Grant- 
Of  the  presumption  of  a  grant,  9-10.)  (Trespass — Of  £.r,espags 
qimre  clausum  fnegit,  46.) 


DEED.— V,  327 

V.   OF  THE  OPEKATION  OF  A  DEED,  AND  WHEN  IT  MAT  BE  AVOIDED. 

1.  That  the  bond  was  given  to  release  the  son  of  the  principal 
obligor,  from  duresSj  is  no  defence  for  the  other  obligor,  who  exe- 
cuted the  deed  as  a  surety.   jQwoere  by  Haywood.    Svmms  v.  Bar- 

foot,  2  Hay.,  402,  (606.) 

2.  Ad  deed,  in  itself  invalid  and  inoperative,  is  rendered  valid 
by  Registration.     Stanly  v.  Smith,  1  Car.  I..  I!..  511,  (l-'4.) 

3.  Any  alteration  of  ;i  deed  or  writing,  if  made  by  the  party 
claiming  benefit  nnder  il.  avoids  it.  whether  the  alteration  be  in 

■  material  or  obligatory  part,  or  in  an  immaterial  and  useless 
part,  provided  it  were  (lone  with  design.  Nunnery  v.  Cotton,  1 
Hawks,  -2-22. 

4.  A  deed  altered  after  its  execution  is  good,  if  the  alteration 
lie  made  with  theknowl  dgi  andconsei  i  of  the  grantor,  and  the 

Itered  need  not  he  registered  to  make  it  color  of  titl  .  for 
an  unn  d  is  color  of  title.     Campbell  v.  McAvtlier,  2 

Hawks.  .",;;. 

5.  An  alteration  in  a  deed,  as  in  a  bond,  which  is  prejudicial 
to  tin'  obligee  as  where  the  date  was  alter  d  s<  as  to  deprive 
him  of  i    i  interest,  must  be  presia    ied  b;  I     tjurytohave 

:  ion.     Tullen  v.  Shaw,  3  Dev.,  238. 

6.  'U  hen  a  deed  was  proved,  but  before  its  registration  the 
boundaries  of  another  trai  t  were  inserted  in  it.  it  was  h& 
evidence  of  that  fact  did  not  impeach  the  deed,  but  that  as  to 
the  tract,  the  boundaries  of  which  were   inserted  after  probate, 
the  deed  was  unregistered.     McLendonv.   Winfree,  3  Dev,  262. 

7.  Y\  here  one  is  ousted  and  afterwards  enters  and  seals  a  di  ed 
upon  the  land,  the  entry  determines  the  estate  of  the  dis 

and  the  deed  is  operative.  Bui  if  he  be  ousted  of  separate  parts 
of  the  land  by  two  trespassers,  and  mak  is  a  deed  for  the  whole 
to  one  oi  them,  it  does  not  convey  the  land  held  by  the  oilier. 
v.  Burnett.  1  Dev.  and  Bat.,  54(1. 

|S-  Fraud  in  he  execution  of  a  deed  will  avoid  it  at  law. 
v  i  'ar  •     2  I  lev.  and  Bat,,  530. 

'•*.  ihe  party  signing  a  deed  or  instrument,  or  any  person 
claiming  under  him,  may  show  that  at  the  time  such  deed  oi 
instrumehl  was  signed,  he  was  of  insane  mind:  the  old  doctrine 
that  a «nan  ca  Itify  himself  having  been  long  exploded. 

Bdllew  v.  Clark,  2  Ired.,  23. 

In.  Sanity  is  presumed  primafai  it,  and,  tin-  party,  who  alleges 
iiisauife  to  avoid  a  deed,  must  prove  it,  but  if  a  general  mental 
deraogemenl  or  lunacy  is  shown,  previous  to  the  execution  of 
the  instrument,  the  burthen  of  proof  as  to  the  sanity  of  the  per- 
son executing  the  instrument  at  the  time  of  its  execution,  is  thrown 
upon  the  person  offering  the  instrument  in  evidence,     Ibid. 

11-  ^Improper Jaaftuence"  constitutes  no  legal  objection  to  the 


328  DEED.— V.  -VI. 

validity  of  a  deed,  but  only  furnishes  a  ground  for  the  interpo- 
sition of  a  court  of  equity.     Clary  v.  Clary,  2  Ired.,  78. 

12.  The  mental  capacity,  sufficient  to  enable  a  party  to  execute 
a  deed,  is  that  he  shall  be  able  to  understand  what  he  is  about, 
and  not  that  lie  shall  have  capacity  to  manage  his  business  with 
"judgment  and  discernment. "  Moffit  v.  Withersjpoon,  10  Ired., 
185. 

13.  If  a  conveyance  of  land  be  made  to  A  and  B,  and  the  deed 
be  delivered  to  A  without  the  knowledge  of  B,  and  he  upon  in- 
formation thereof  from  A,  dissents  therefrom,  the  deed  is  a  roided 
as  to  him  and  nothing  passes  to  him  by  it.  But  whethei  the 
whole  vests  in  A,  or  the  deed  is  inoperative  as  to  a  moiety, 
quaere.     Baxter  v.  Baxter,  Busb.  341. 

See  (Deed — Of  the  construction  of  deeds  and  their  vari©HB 
parts,  18.) 

VI.       OF    THE    CONSTRUCTION    OF    DEEDS   AND    THEIR   VARIOUS    TARTS. 

1.  Where  a  deed  conveyed  the  whole  estate  absolutely  to  the 
bargainee,  but  in  bl  es,  though  net  in  the  habendum, 
there  was  a  i  !  ..  grantor's  life  time  in  any  part  or 
parcel  of  the  I  i  held,  that  the  fee  passed  immediately  to 
the  grantee  and  bl  ttion  was  \  id.  Ward  v.  Ward, 
Man,.  28,  (18.)  (Seems  to  have  been  overruled  by  Sasser 
v.  Blythe,  1  Hay.,  259,  (299)  and  Smith  v.  Grady,  2  Dev., 
395.) 

2.  A,  seized  in  fee  of  the  premises  in  question,  executed  a  deed 
to  his  son,  in  which  he  stated  that,  "for  the  |  I  of  his 

I  the  land  to  him  and  his  heirs  forever,  "pro- 
vided that  this  deed  should  not  take  effect  during  the  lives  of 
the  grantor  and  his  wife,  but  the  pr<  mises  should  remain  first  to 
him  for  his  natural  life,  and  thi  n  to  In  r  for  her  life,"  held,  that 
jfche  last  claus     fthed     d  wa    ■  ■      servation  of  life  estates, 

and  that  the  fee  is  a  good  remainder 'upon  ter  v 

Btythe,  1  Hay.,  359,  (299.) 

."..  A  deed,  made  since  the  statute  of  uses,  is  not  to  be  constru- 
ed by  the  samerulee  of  interpretation,  as  were  applied  to  deeds 
befi  re  that  statute.  Therefore,  it' a.  deed  give  an  estate  to  a  wo- 
man during  her  life  or  widowhood,  it  determines  by  her  mar- 
riage.    Pe>rsev.  Owem,  2  Hay,  234,  (415.) 

4.  A  deed  purporting  to-,  convey  all  the  lands  the  bargainor 
then  had,  and  all  he  should  subsequently  acquire,  can  only 
operate  en  all  the  lands  he  then  had,  and  lands  subsequently  ac- 
quired do  not  pass  under  it.  Arrington  v.  Arrmgton,  2  <3ar.  L. 
];.,  253,  (232.) 

5.  A  deed,  after  describing  a  ttaet  of  land  conveyed  by  it-,  ad- 
ded, "one-half: acre  ofland.whera  my  grave  yard  is,  &c,  is  ex.-- 


DEED.— V.  329 

cepted.  Together  with  forty-five  acres,  &c. ;  also  another  tract 
containing  fifty  acres,"  &c.  The  exception  extends  only  to  the 
grave  van!,  and  the  two  last  tracts  are  granted.  Jordan  v.  Hd- 
hweU.    K  C:T.  R.  173.  (605.) 

6.  The  recital  in  a  deed  is  not  an  essential  part  of  it.  its  use 
being  to  explain  more  fully  theobject  of  the  parties.  It  affirms 
no  fact  andcannol  operate  as  an  estoppel;and  if  the  recital  be  er- 
roneous, it  will  not  affect  the  operation  of  the  deed.     Hah 

D  to;  3  Murph,  260. 

7.  Where  .V  conveyed  a  slave  to  B,  ami  on  the 

by  a' deed,  declared  thai  ""he  put  the  in  the  poss<     ion 

of  A,  and  did  give  ami  grant  the  sei  le  said  slave  to  A. 

during  her  natural  life,  free  irom  any  charge  or  claim  for  such 
gervices  during  her  natural  life,"  it  this  did  not 

operate  to  convey  the  title  to  the  negroto  A.  but  parted  with  the 
possession  only,  withoul  compensation  for  his  services.    S 

8.  Where  there  is  a  full  and  i  of  the  thing  to 

be  c  ■  part,  of  the  deed         I 

part  one  less  full  and  clear,  which  c;  ith  the 

first,  the  weaker  shall  give  be  i  ntirely 

i 
9;   Where  land  wis  a  uveyed  toone  by  his  i  ■■<  \  after- 

iety  of  it  d  vised   to   h 
deed  th  f  1  - 

■iv  of  the  lands,     Ilrid. 

10.  Where  a  pej  son,  for  a  \  r  the 
I                                                                       :                      .i 

gain  and  sale  land,  reserving  to  one  of  his  own  sons  a  life  i 
,;.  i  -  life  estate  under  the  i 

v.  6  -  395. 

11.  Th         rd  "heirs"  is  absolute!; 

both  in  deeds  at  common  law,  an  1  in  th    e  op>  rating  under  the 
'mi  1  a  life  estate  is  I   into  a  tee 

either  by  a  c  •  ojoyment 

to  the  id  his  heirs.     Roberts  v.  Forsylhe,  3  Dev.,  26. 

12.  A  deed  to  tb  ■  children  of  one,  reserving  to  him  the  use 
and  i  qi  B.1  of  the  land,  vests  in  him  an  estate  for  life.  Hatchv. 
j  m,  3  Dev.,  411. 

13.  Where  an  informal  deed  conveyed  to  A  a  n<  gro  woman  and 
her  issue,  except  I  wo  children  which  were  givi  n  to  B,  and  thenad- 
dedas  follows:  '"I  also  give.to  my  daughter,  B,  a  negro  man  named, 
&c,  to  her,  &c,  to  have,  after  my  death,  and  to  hold  all  the 
said.  &c,  to  them  fche  said. A  and  B,  their  heir,-.  &c,  from  hi  nce- 
forth.  as  their  property  absolutely,  without  any  manner  of  condi- 
tion," it  was  held  that,  the  reservation  of  the  life  interest  applied 
only  to  the  negro-man  given  to  B,  notwithstanding  the  addition 


330  DEED.— V. 

of  a  clause,  that  if  A  should  die  without  issue  the  property  should 
revert  to  the  donor.     Branch  v.  Byrd,  4  Dev.,  142. 

14.  The  appointment  of  a  guardian  to  a  donee  does  not  give 
a  testamentary  character  to  a  deed  nt'  gift.  Nor  does  the  reser- 
vation to  the  donor  of  a  life  estate  in  a  slave.     Ibid. 

15.  If  the  description  in  a  deed  be  so  vague  or  contradictory 
that  it  cannot  be  ascertained  what  thine,'  in  particular  is  meant, 
the  deed  is  void.  But  different  d<  cripl  rill  be  reconciled 
if'  possible,  or  if  irreeoncilabli  ie  of  them  point  to  the 
thing  with  certainty,  a  false  or  mistaken   reference  to  another 

■  •til  not  avoid  it.     Pro-tor  v.  Pool,  4  Dev.,  370. 
Ill  Quantity  is  not  generally  descriptive,  but  it  may  be  so,  as 
■;■  son  own  ton  lots,  i  me  of  half  an  acre,  and  the  other  of  an 
t,nd  granl  his  "acre  lot,"  the  larger  lot  will  pass,  though  a 
few  feet  more  or  less  th;  n  an  acre.     Ibid. 

17.  No  positive  rule  can  be  laid  down,  for  ascertaining  the  in- 
tention of  the  maker  of  a  di  id,  n-  other  instrument,  as  to  the 
subject  matter  of  con ^   yance.     But  his  intention  i    i    :     collected 

•     n  the  whole  instrumenl  taken  together.     Ibid. 

18.  W  hether  an  instrumenl  I  i  a  de<  I  or  no;  is  a  question  for 
th m  t,  bu1  whethi  r  t1  ha-,  been  c  SicelL  ■!  or  nol  -    a  question 

lie  jury.     Norton.  <v.  Child,  4  Dev.  460. 
V:>.   \  subject  matter  of  a  conveyance  is  completely 

identified  by  its  name,  its  localities  and  by  certain  other  marks 
:ription,  the  addition  of  another  partieular,  which  doesnot 
apply  to  it,  or  to  any  thine;  else,  will  nut  a  \  dd  the  conveyance, 
hut  will  be  rejected,  as  having  been  insert*  d  through  misappre- 
hen  ion  or  inadvertence.     BelJcv.  Love,  1  Dev.  ami  Bat.,  65. 

20.  General  words-in  a  deed,  as  "my  estate,"  or  "my  property," 
or  "all  the  property  I  possess,"  do  not  pass,  or  profess  to  pass 
any  thing  which  was  not  held  by  the  grantor  as  his  own  prop- 
erty, although  la'  tnighl  have  the  possession.  The  courl  cannot 
assume   as  a.  fact  that  prbperty,   the  title  to  whielj  is  in  one 

i  i  session  in  another,  is  held  adversely,  and,  upon 
the  faith  of  that  fact,  declare  the  property  to  he  included  in  a, 
general  description  used  by  the  person  in  t,  of  "all  my 

property."     Jonesv.  Sasser,  1  Dev.  and  Bat,  t5#. 

21.  Any  inaccuracy  or  deficiency,  in  the  description  contained 

i  d,  may  be  corrected  or  supplied  by  arefere  ice  to  another 
deed,  if  the  deed  referred  to  contains  a  im  re  particular  and  cer- 
tain description  of  the  land  intended  to  b<  conveyed.  Thus,  it 
to  the  description  by  courses  and  distances  in  a  deed,  be  added 
the  further  description  "containing  .'i<>n  acres  sold  by  Jacob  Mc- 
Lindonto  Isaac  Suwell,"  the  courses  and  distance's  shall  he  con- 
trolled, if  necessary,  by  the  description  in  the  deed,  given  for  the 
land  by  McLindon  to  Sawell.  lUUrrx.  BarnttA  1  >ev.  andBat.,  133 

22.  Where  a  debtor  eonveyed  property  in  trust  to  secure  the 
payment  of  certain  debts,  anil  among  others,   "a  note  for  $500 


DEED.— V.  331 

payable  to  J.  \V.,  and  by  him  transferred  to  K.  D.,"  the  trustee 
and  proceeded  to  direct  that  "the  l>alance  of  the  money,  if  any, 
after  paying  the  debts  in  this  deed,  the  said  R,  D.  is  to  pay"  to 
the  grantor,  and  the  trustee  sold  the  property,  and  received  the 
proceeds  sufficient  to  pay  the  debts  mentioned  Lathe  deed  in 
trust,  it  was  held,  that  in  a  suit  by  11.  I>.  against  J.  W.,  as  en- 
dorser upon  a  note  for  $430  made  by  the  debtor,  the  jury  were 
not  at  liberty  to  infer  without  any  extrinsic  evidence,  that  there 
wasbul  one  note  to  which  these  persi  me       re  parties,  andtb 

ribed  in  the  deed  by  mistak  :;  and 
that  no  evidence  could  be  received  at  la\     to  mistake. 

Dkmukes  v.  JVrigJtf,  4  Dev.  and  B; 

23.  tn  the  construction  of  d  Is  I  e  first  nil  is,  that  the  in- 
tention of  the  parties  is.  if  possible,  to  be  su]  ad  the 

rule  is,  that  this  intention  is  to  be  ascertai      I    by  the 
deed  itself,  that  is,  from  all  the  parts  of  it  taken  Ibid. 

24.  Omissions  in   a  deed  cannot  lie  supplied  from  arbitrary 

though  founded  upon  the  highest  degree  of  proba- 
bility.    Ibid. 

nrveySj  which  are   referred  to  in  deed    of 
veyance  whether  annexed  to  the  deed  mechanically  or  not,  be- 
come incorporated  as  part  of  them.     But  whether  such  map  or 
could  be  read  in  evidence,  when  not  registered  with  the 
deed,  qucere.     Hams  v.  MadweU,  !  Dev.  and  Bat.,  241. 

le  id,  wherein  the  grantor,  in  consideration  of  the  sum 

I  >lla  rs  paid  by  the  grantees,  "  remised,  released  and  quit 

claim"  to  tkem  certain  land,  may  operate  as  a  deed  of  bargain 

and  sale,  to  pass  the  title  to  the  grantei  s,  if  il  ca  o]  erate  as 

■  w.mi  of  some  interest  in  them.     Bronsonv.  Paynter, 

4  Dev.  and  Bat,  393 

il.   Where  the  who!  ■  inten  st  in  property  is  conveyed  to  one 

misi  s  of  a  deed,  1ml  in  the  habendum  is  limited 

.     .       the?,.- the  latter  is  repugnant  to  the  former  and  void,  and 

is  vQt  ed  in  the  grantee  named  in  the  premises, 

who   may  consequently   maintain   an   action   for  it  in  his  own 

name.     Huffier  v.  Irwin,  4  Dev.  and  Bat.  433. 

28.  If  the  name  of  a  grantee  appear  first  in  tl  m  of  a 
de  il  will  be  good,  provided  there  \vas  not  another  grantee 
named  in  the  premises;  or,  if  there  were,  provided  the  estate 
given  by  the  habendum  to  the  new  grantee  was  not  immediate, 
but  by  way  of  remainder.      Ibid. 

29.  V*  here  ina  deed  of  covenant  to  stand  seized,  from  an  i  node 
■Xo  his  nephew.  T.  S.,  the  donor  used  these  words:  "1  give  and 

grant,  alter  the  decease  of  my  wife,  two  tracts  of  land,  lying,  &c, 
to  be  possessed  by  him  in  fee  simple,  after  the  decease  of  my 
raid  wife,  upon  condition  that  he,  the  said  T.  S.,  shall  then,  im- 
mediately, or  as  soon  after  a  reasonable  time  as  may  be,  .settle 
the  same,  and  continue  on  the  said  premises  during  his  natural 


332  DEED.— V. 

life,  so  that  the  said  premises  shall  not  be  sold  or  alienated  dur- 
ing the  life  time  of  him,  the  saidT.  S.  Also,  I  give  and  grant  to 
my  said  nephew,  T.  S.,  one  negro  fellow  named  H.,  to  him  Ins 
heirs  and  assigns  for  ever;"  it'ioas  held,  that  the  words  "to 
him,  his  heirs  and  assigns  forever,"  applied  only  to  the  limita- 
tion of  the  slave,  and  that  the  nephew  took  but  a  life  estate  in 
the  lands,  for  want  of  the  words  of  inheritance,  "to  him  and  his 
heirs."     Wiggs  ^.-Sanders,  4  Dev.  and  Bat.,  480. 

30.  By  a  proper  reference  from  one  deed  to  another,  the  des- 
cription in  the  latter  may  be  consider!  d  as  incorporated  in  the 
former  and  both  be  read  as  one  instruifaent,  for  the  purpose  of 
identifying  the  thing  intended  to  be  conveyed.  But  there  must 
be  no  inconsistency  between  the  calls  of  the  latter  di  d  and  the 
former  deed  or  ."'rant:  as  for  instance,  where  the  former  deed  or 
'grant  calls  for  a  line  of  another  patent,  and  the  latter  deed  omits 
that  call,  but  goes  for  a  particular  course  and  distance,  and  only 
profes  ■  to  ci  y  a  pari  i  '  the  tract,  embraced  bythegr  it  or 
former  conveyance.  In  such  a  case  the  course  and  distance 
called  for,  being  the  specified  description  in  the  deed,  must  pro- 
vail.  Tho     i      Lin  d.,  252. 

31.  ii  ie  construction  of  a"  deed  that  a  per- 
fect description,  which  fully  ascertains  theeo  .  'be  de- 
feated by  a  further  and  I  ription.  But  the  c  url  has  no 
right  to  strike  out  om  part  of  the  d  more  than  another, 
unless  the  part  retained  compli  tely  fits  the  subject  claime  I,  and 
the  rejected  pari  does  not  and  imle:  s,  further,  ii  appeal  that 
the  whole  description,  in  I  ught  to"be  rejected, 
/..'.;  cab  other  thing.  It  musl  be  shown,  a1  leasf  to  the" 
degree  of  moral  probability,  that  there  i  ;  that  will  an- 
swer the  description  in  every  particular.  Mayo  v.  Blount,  1 
Ired.,  283. 

32.  If  the  words  in  a  deed  f  il  of  oods  and  chattels  plainly 
evideni  nt  without  technical  words.  Such 
a  deed  of  sale  may  be  made  withouf  anywords  of  "bargain  and 
sale,  as  well  as  with  those  word's:  Fortescue  v.  Sat*  ,  I 
Ired.,  566. 

33.  E.  S.  was  entitled  to  two  tracts  of  land,  an  upper  and 
lower,  and  the  water  from  the  former  was  drained  off  by 
ditches  through  the  latter.  By  deed  bearing  date  the  12th  May, 
1797,  he  conveyed  to  his  son,  j.  S.,  the  lower  tract,  "a  privilege 
of  two  leading  ditches  to  T.  S.  (another  son)  cx<  epted,"  and  by 
deed  lated  the  13th*  May,  1797,  he  conveyed  to  the  said  T.  S. 
the  upper  tract,  but  without  saying  any  thing  of  the  privilege 
of  those  ditches,  //  was  held,  that, -'"wen  admitting  the  words  in 
the  deed  to  J.  S.  to  have  amounted  to  a  grant  of  the  privilege 
to  T.  $.,  still  there  is  nothing  to  annex  that  grant  to  the  upper 
tract  of  land,  so  as  to  transmit  it  to  an  assignee.'  JSpencePVi 
Spencer,  2  Ired,  96. 


DEER— V.  333 

34.  Every  deed  of  conveyance  of  land -must  set  forth  a  subject 
matter,  either  eertain  in  itself  or  capable  of  being  reduced  to  a 
certainty,  by  reference  to  Bomethmg  extrinsic  to  which  the 
deed  refers     Massey  v.  BeUslq,  2  Ired.,  170. 

35.  A  deed  for  a  feraal  .1   "ber  it  .i  only 

■  the  woman  and  her  issue  bora  after  the  execution  of  tbe 
deed."  Morrow  v.  Alexander^  -  [red. 

3<>.  Where,  in  a  deed  for  land,  a  I  ttioned 

in  1  %  it  cannot  be  enlarged  into  a  fee, 

either  by  a  warranty  in  i  mt  for  quiet enjoyment, 

to  the  grantee  and  his  heirs.     SneU  v.  Toting,  3  Ired..  MT'J. 

37.  A  by  deed  conveyed  to  Ba  negro  woman,  in  exchai 
a  negro  boy,  with  this  condition  m  the  i 

convey  their  right  derived  from  their  ei  to  A, 

and  if  they  did  net.  each  party  was  to  resume  the  right  to  his 

■  it  washeld,  that  before  B's  heirs  refui  ed  to  make  this  con- 
veyance of  their  right,  the  right  of  B  t<  the  negro  woman  was 
not  divested  out  of,  hut  remained  in  him.  Walker  v.  Seed,  4 
Ired.,  152. 

38.  Where  the  grantor  of  a  tract  of  land  reserved,  to  himself 
and  bis  heirs,  "all  the  saw  mill  ti  land  standing  or 
being,  or  which  may  hereafter  stand  or  he,  on  the  said  land  or 
any  part  thereof;"                   I  that  the  grantor  and  hi 

ily  a  right  to  the  saw  mill  timber  then  on  the  land 
such  trees  as  miglrl  thereafter  become  fit  for  saw  mill  timber, 
when  th  sy  became  so  iit.  but  that  they  had  no  rigbl  to  prevent 
the  grantee  of  the'  land  from  cutting  down  pine  saplins,  thongh 
t  undisturbed,  have  become  saw  mill  timber 
at  some  future  time.     Robinson  v.  Gee,  4  Ired.,  186. 

39.  A  deed  un  can  eonvey  no  title  to 
land,  unless  a  good  or  a  valuable  c  ion  is  expn 

the  face  of  it,  or  if  not  so  expn     ■■  d,  can  I  e.     ConT 

veyances  at   common   law,  which  <  [trans- 

mutation of  Jims-  ivired   ao  consideration  to  I 

them;  but  those  under  the  statute  are  void  without  a  c<  nsideration, 
because  the  statute  only  converts  into  i  tte  the  use, 

which  was  before  an  equitable  interest:  and  equity  would  en- 
fore'  ■  no  use,  where  there  was  not  a  good  or  a  valuable  consid- 
eration tn  support  it.     Springs  v.  Hawks,  5  Ired.,  30. 

4u.  Where  an  -indenture  made  between  J.  L'.,  and  J.  S„  wife 
nesseth  that  I,  the  said  J.  11,  have  this  day  sold  a  certain  tract 
of  land  lying,  &c,  for  and  in  consideration  of,  &c,  to  me  in 
hand  paid  by  the  said  J.  S,  the  right  and  title  of  the  above  de- 
scribed land  I  will  forever  warrant  and  defend,  from  me,  my 
heirs  and  every  of  them,  and  every  other  person  lawfully  claiming 
unto  J.  S„  his  heirs  and  assigns  forever;  to  have  and  to  hold  with 
all  its  profits  and  advantages  appertaining,"  it  icas  held,  that  the 


334  DEED.— V. 

deed,  though  informal,  was  sufficient  to  convey  the  fee  simple 
to  J.  S.     Armfeld  v.   Walker,  .r>  [red.,  580. 

41.  A  person  may,  by  deed,  covenant  to  stand  seized  to  the 
use  of  another  infuturo,  as  for  instance  alter  his  death  Daven- 
l<>,,i  v.   Wynne,  6  Ired.,  128. 

42.  A,  by  deed  poll,  in  consideration  of  love  and  affection, 
conveyed  to  his  smi  Hand  grandson  C  certain  lands,  wit  lithe  usual 
habendum  andtenendum  clause:  then  follow  these  words  "andfur- 
thermore,  we,  the  said  B  and  < '.  their  heirs  and  assigns,  are  not 
to  interrupt  the  said  A  during  his  lifetime,  on  the  said  premises, 
by  them  terms  I  have  hereunto  se1  my  hand  and  seal.  &c,"  it 
was  held  that  this  was  a  cox  enant  l  >y  A,  for  himself*  and  his  heirs, 
td  stand  seized  to  the  use  of  V>  and  C  and  their  heirs,  on  his 
death.      Ibid. 

4.">.   A  deed  conveying  a  storehouse  wherein  A  B  had  a  store, 
now  occupied  by  him  asa  [iostoffice,  with  the  outhouse  and  office 
adjoining,  conveys  also  the  lot  on  which  the  hauses  stand,  there 
being  nothing  in  the  oth  i  part  of  the  deed  to  control   i 
Bcription  and  exclude  the  l<  t.      Wise  v.   Wheeler,  6  Ired.,  l!l(j. 

44.  Where  one  conveyed  by  deed,  in  consideration  of  natural 
love  and  affection,  land  to  his'son  B,  "to  have  and  to  hold,  it  c,  unto 
the  said  B  his  natural  life  ofily,  and  then  to  return  to  the  m  i 
child  or  children  of  the  said    '      :., "and  covenanted  with  tl  I 

B  and  his  lawfully  begotten  male  heirs,  thai  he,  the  said  B,  arid 
his  heirs  as  aforesaid,  &c,  shall  and  may  lawfully,  peaci  b]  ■ 
have,  hold,  &'c,  it  was  held  that  this  was  a  covenanf  bythe  donor 
tn  stand  seized  tu  the  use  of  B  for  his  life,  and  for  any  son  or 
smis  of  his  after  his  death:  that,  il  B  Kad  a  son  born  at  the  time 
the  deed  was  executed,  the  remaindei  "was  then  vested  in  him; 
if  horn  afterwards,  the  seizin  reman  ikg  in  the  covenantor  was 
sufficienl  to  feed  the  contingent  use  *hen  it  came  w  esse,  and 
enabled  th i  statute  of  uses  to  transfei  the  equitable  use  into  a 
legal  estate  in  fee  in  remainder,  B  having  had  a  son  who  sur- 
vived him.     Borden  v.  Thomas,  ii  Ired.;  209. 

to.  A  deed,  alter  recitin  >  a  sale  of  laud  by  execution,  pro- 
ceeded thus,  "in  consideration,  &c,  the  said  P.  1!.  sheriff,  &c, 
doth  hereby  bargain,  sell  and  confirm  >«ilf,  the  said  J.  T.  B.,  &c, 
their  heirs,  assigns,  M.,  to  have  and  hold  the  same  to  the  said 
J.  T.  P>.,  &c,  their  heirs  and  assigns;'  it  was  held  that  the  i 
the  word  "  with "  did  not  affect  the  sense  or  operation  of* the 
instrument,  as  upon  the  context,  it  was  evident  between  or  with 
whom  the  contract  was.  and  by  and  to  whom  the  estate  was 
conveyed.     Broolcsv.  Ratdiff,  11  Ired.,  321. 

46.  What  the  descriptiocrin  a  deed  fur  land  means,  or  whether 
it  convevs  any  definite  idea,  are  questions  for  the  court,  and 
ought  not  to  be  left  to  the  jury.  And  where  the  description  is 
too  vasrue  and' uncertain  hi  the  court  to  ascertain  itsmeaniag, 


DEED.— Y.  335 

the   deed   will   not  pass  any  thing.     Edmundson  v.  Hooks,  11 
Ired.,  373. 

47.  A,  having- a  life  estate  in  two  negroes,  executed  an  instru- 
ment, attesti  >!.  sealed  and  delivered,  in  which  was  the  expres- 
sion, "which  right  -and  title  1  relinquish  to  B  for  value  received;" 
it  was  held  that  if  this  were  not  i:;^  <\  as  a  release  techni  ■■ally,  it 
was  good  as  a  bill  of  sale  or  deed  of  gift.  McAllister  v.  McAllister, 
12  Ired.,  184. 

48.  However  nntechnical  and  ungrammatical  a  deed  i  lay  be, 
yet  it  will  be  valid,  if  its  words  declare  sufficiently  and  legally 
the  party',--  intention.  Therefore,  where  by  a  very  informal  deed 
A.  "in  com  ideration  of  good  will  and  affection  tor  his  son-indaw, 
H,"  gave  certain  slaves,  and  then  followed  this  clause,  "I  also 
appoint  II  agent  of  the  following  property,  to  wit.  &c,  and  the 
following  tracts  of  land,  &c,  tobe  to  the  use  and  benefit  of  my 
daughter  < !,"  who  was  the  wife  of  II:  it  was  held  that,  the  inten- 
tion to  1  to  the  daughter  being  plain,  the  deed  i 
operate  as  a  covenant  to  stand  sei  i  i  '.  eithei  tb  the  use  of  H  as 
trustee  for  C,  or  to  the  use  of  G ;  and  tie  via,  the  titl 

passed  from  A,  and  hi ill  not  recover  in  ejectmenl  against  I!. 

Cobb  v.  B  b    ■ 

49.  In  a  de  i  I  of  bargain  and     \1<  .  the  bargainor  covena 
ned  vt'  a  g I.  &c,  estate,"  &c,  and  if  was  held 

aid  in 'l  by  constru  :tion  substitute  "seized"  f  ■ 
"signed,"  so  as  to  make  makel        ent  ace  intelligible  and  0]  er- 

.        ,. 

50.  An  exception  in  a  de<  cl  "of  all    the  pme  timber  that  will 
square  one  fo  t,"  to  the  vendors,  "theirheirs  and  assigns fi   ■< 
with  the  privilege  of  cutting  and  carrying  away  said  timber  al 
any  time  that  it  may  b  to  the    vendors,  their 

and  assigns,"  only  embra  •        o    that  size  at 

the  dal  it  such  as  attained  to  it  after- 

wards.     Win   ■  I  v.  Smith,  2  •  . 

51.  V\  here  il  appears  tl  i  there  are  pine  trees  lit  for  making 
turpentine,  which  are  no1  tit  for  tun  timber,  an  exception  of 
tun  timber  i  i  a  di     I  .  given  for  the  declaim  d  purposi    i  I 

e,  is  not  inconsistent  with  The  granting  part  of 
od.      Grio.  v.   Wrifjht,  t  Jones,  184. 

52.  Where  the  metes  and  bounds,  given  in  a  deed,  leek  in  a 
mill  house  and  half  of  the  mill  dam  and  pond,  and  then  were 
added   these  words,  "also  all  my  mill   on   the  safid  ci-eek   tobe 

1  to  the  above  mentioned  tract;"  it  was  held  that  the 
soil  of  the  dam  and  mill  pond,  outside  of  the  nn  tes  and  hounds, 
di  i  nol  pass  by  the  deed,  but  that  an  easement  tb  use  the  dam 
and  pond,  as  an  incident  to  the  mill,  did  pass.  Whitehead  v 
Garris,  3  Jones,  171. 

53.  A  lif  -taie.  conveyed  in  the  premises  and  habendum  of 
a  deed,  cannot  be  enlarged  into  a  fee  by  words  of  inheritance 


33G  DEED.— V. 

.eotttained  'in  the  warranty  or  covenant  for  quiet  enjoyment 
'Begistt  r  v.  Howell,  3  Jones,  312. 

54  A  description  in  a  deed  "of  a  piece  of  the  A.  M.  tract  of 
'land,  that  belongs  to  the  hi  irs  of  Z.  P.,  lying  and  being  in  the 
connty  of  Macon,  on  Ella  Joy  <e*eek  and  its  waters,  in  district 
eleven,"  "  as  we  inherited  it  at  the  death  of  Z.P.,  as  heirs  of  him,'" 
is  sufficiently  authorize -the  introduction-of  parol  proof, 

to  identify  the  laud  that  answers  such  description.  Moses  v. 
Peak;  3  Jones,  520. 

55.  Where  a  deed  of  bargain  and  sale,  reciting  that  its  object 
i  ecuTe  the  property  to  the  sole  and  separate  use  of  the 
bargainor's  daughter,  and  the  payment  by  the  bargainee  of  one 
dollar,  convey  i  the  ame  to  the  said  bargainee  and  his  heirs,  in 
trust  forth  i  sole  and  separate  use  of  the  daughter  and  her  heirs; 
it  was  held  that,  afterthe  death  of  thedaughter,  the  legal  ■ i  bate 
still  remained  in  the  trustee,  and  that  her  heirs  at  law  could  noi 
reoover  the  land  in  an  action  of  ejectment.  Bruce  v.  Faucett\ 
4  Jones,  391. 

5(>.  Where*  land  was  granted,  with  the  reservation  to  the 
grantor  of  a  certain  space  out  of  the  land  described,  for  an  ave- 
nue, winch  had  been  before  used  for  the  same  purpose,  it  was 
held,  thai  the  Legal  effect  of  the  dei  d  was  to  grant  the  soil,  sub- 
ject to  an  easement  in  the  grantor  for  his  avenue.  Hays  v. 
Ash  10,  5  Jones,  63. 

57.  Where  A,  supposing  he  had  only  a  life  estate  in  a  female 
slave  and  her  two  children,  but  in  fact  lie  owned  the  entire  pro- 
perty, in  the  slavei  made  a  deed  to  his  brother  15,  reciting  that 
lie  owned  such  life  interest,  and  had  procured  it  from  B,  and 
added,  "winch  right  and  title  I  relinquish  to  him  (the  said  B, ) 
and  -'her  two  childn  n  Valentine  and  Caroline  also;"  it  was  held, 
that  only  a  life  >  state  in  the  slaves  passed  by  the  deed.  McAlis- 
ter  v.  Holt  m,  6  Jon  s,  331. 

58.  Where  a  dei  d  purported  to  convey  all  the  grantor's  prop- 
erty "except  such  part  as  the  law  allows  poor  debtors,"  it  was 
held,  that  property  exempt  from  execution  under  the  Rev.  Code, 
eh.  45,  see.  7,  was  excepted  from  the  operation  oi  the  deed,  but 
not  such  as  might  have  been,  but  had  not  been,  set  apart  for  the 
grantor,  under  the  8th  and  9th  sections  of  the  act.     Massey  v. 

Warren,  7  Jones,  143. 

59.  Where  the  owner  of  a  tract  of  land,  having  a  mill  on  it, 
sold  a  part  of  the  land  including  the  mill,  it  was  held,  that  the 
deed  conveyed  to  the  purchaser  an  easement  on  the  lands 
reserved,  entitling  him  to  overflow  them  by  a  pond  to  the  same 
extent  as  they  were  overflowed  at  the  time  of  his  purchase;  and 
that  if  the  owner  of  the  reserved  lands  complained  that  the  dam 
had  been  since,  raised,  he  was  bound  to  show  it.  K-estler  v.  Ver- 
ble,  7  Jones,  185. 

CO.  A  deed  conveying  a  tract  of  land  contained  the  words, 


DEED.— Y.-VI.  337 

"C's  luili  Beat  I,"  and  i!  was  held,  that  the  exception  did 

not  embrace  the  soil  of  the  mill  pond,  but  only  an  easement  for 
ponding  the  water  upon  it.     Everett  v.  Dockery,  7  Jones,  390. 

61.  A  description  in  a  deed  of  "my  house  and  lot  in  the  town 
of  J.,  in  A.  county,  North  Carolina,"  where  the  grantor  had  but 
one  house  and  lot  in  that  town,  was  held,  to  be  sufficiently  defin* 
|te  to  pass  them.     I  Ray,  7  Jones,  609. 

Si  e  (Ferry  and  Toll  bridge,  9.) 

VI.       OF   DEEDS   IX    TRUST. 

1,  A  trust  may  l>r  created  for  the  benefit  of  creditors  by  a 
■  f  which  they  are  ignorant,  and  their  assent  to  it  may  be 

presumed;  y  t,  where  the  Trust  is  created  upon  the  express  con- 
dition that  they  shall  execute  the  deed  by  a  certain  day,  and 
thereupon  certain  obligations  are  imposed  on  them,  they  cannot 
incur  the  obligations,  without  a  performance  of  the  condition. 
If  the  creditors,  in  such  a  case,  never  sign  the  deed,  the  trust,  if 
:  at  all,  will  be  for  the  benefit  ofthe  bargainor,  and  is  such 

an  interest  as  may  be  reached  by  execution,  under  the  act  of 
1812.      Moore  v.  McDuffy,  3  Hawks,  578.      (See  Rev.   Code,  eh 

45,    see.    4.  ) 

2.  It  seems  thai  a  deed  in  trust,  made  after  the  passage  of  the 
act  of  1820,   and  before  the  1st   day  of  June,   1821,  need  not  be 

red  within  six  months;   but  deeds  of  trust  ofthatdate  are, 

:ed  upon  the  footing  of  mortgages,  in  res] t   to 

ere  liters  and  purchasers,  so  far  as  to  except  them  out  of  the  oper- 
ation of  ill"  usual  aets,  extending  the  time  for  the  registration  of 
i  c.     Ridley  v.  Mb Gehee,  2  Dev.,  40.     (See  Rev.  Code,  ch. 

37,  see.   22  and  23.  I 

_  ?..  Where  a  deed  of  trust  was  proved  within  the  prescribed 
time,  and  an  entry  made  by  the  clerk  of  the  probate  i  ml  order 
i  itration,  but  the   I  ing   p  id,  the  clerk  informed 

!  it,  that  it  should  not  be  registered,  and 
.   it  was  held,  that  while  the  entry  remain- 
ed, parol  evidence  was  n  it  admissible  to  contradict  it,  and  that 
,  in  not  handing  it  to  the  register,  did  not 
vendee.      Ibid. 
■h   v'  din  trust  was  duly  proved,  but  by  reason  of 

the  death  ofthe  n  I  the  neglect  of  the  county  court  to 

appointa  su  -  not   registered  within  six  months,  but 

gistered  as  soon  as  a  successor  was  appointed,  it  was  held, 
that  the  deed  was  available,  as  if  duly  registered.  Moore  v.  Col- 
lins, 3  Dev.,  126.     (Overruled  by  S.  C.  in  4  Dev..  384.) 

5.  Where  a  deed  of  trust  was  duly  proved  and  delivered  to 

the  register  within  six  weeks  after  its  probate,  but  because  of 

the  sickness  and  death  of  the  register  was  not  registered  within 

six  months,  but  was  registered  as  soon  as  a  successor  was  ap- 

22  t 


338  DEED.— Yl. 

pointed.  //  was  held  to  be  void  as  to  the  creditors  of  the  bargainor. 
Moore  v.   Coffins,  4  Dev.,  384. 

li.  Where  a  creditor,  knowing  that  another  creditor  has  taken 
a  deed  of  trust,  which  is  not  registered,  takes  another  deed  of 
trusl  on  the  same  property  to  secure  his  ownddbt,  and  procures 
it  to  be  first  registered,  this  is  ao  fraud  on  any  person,  at  leapt 
at  law;  more  especially  is  it  not  a  fraud  against  those  who  do 
not  claim  under  the  creditor  secured  by  the  first  deed.  Burgin  v. 
Burg-iHtl  Ired.,  453. 

7.  11  is  no  ground  for  the  court  to  pronounce  a  deed  in  trust 
Iraudulent,  per  se,  as  against  other  creditors,  thai  the  property 
conveyed  wa  rivate  sale,  or  that  the  surplus,  after 
payment  of  the  di  I  d,  was  to  be  return,  t]  to  the  bar- 
gainor, or  thai  the  property  conveyed  is  greater  in  value  than 
the  debts  sec  :es  to  be  submitted  to  a 
jury,  to  aid  thei  '  whether  the  intention  of  the 
parties  was  /                                       /  bid. 

8.  Neither  .villa"  selling  under  a  deed  in  trust,  which 
was  bonafi  ''■'■'■     '•  the  delay  and  the   u 

of  the  property,  I  r,  were  such  as  to  give  him  i 

credit,  and  h  e  world  a  of  the  prop- 
erty.    Ibid. 

9.  Though  a  of  this  State,  by  a 
deed  of  trust,  to  convey  all  his  property  for  the  purpose  of  pay- 
ing cea  tain  cred  ts  in  .  y  I  there  musl  be 
no  condition,  direct  or  indi]  oiling  this  application. 
Hefner  v.  Erwin,  I  [red 

10.  Such  a  deed  must  1  d    for  the  purpose  il    prol 

to  have  in  view,  and  any  provision  by  which  a  sale  under  it  is 
unreasoj  ably  postponed,  or  by  which  the  debtor  is  to  obtain  a 
benefit  for  himself  or  iamily,  or  any  agreement  by  which  the 
transaction  is  to  b  I  >p1  -  ■.<■!,  until  the  debtor  has  an  oppor- 
tunity of  getting  beyond  the  reach  oi  proi  ss  issued  by  his  other 
creditors,  or  by  which  tb  not  to  be  registered  until  the 

other  creditors  sue,  or  threaten  I  >  sue,  will  maketta  deed  Iraud- 
ulent, because  it  shows  that  one-objeel  of  the  deed  was  to  hinder, 
defeat  or  defraud  some  creditors.     Ibid. 

11.  If  only  a  part  of  the  conside  ation  of  a  di  ed  it-  fraudulent 
against  creditors,  the  wholi    !     raid.     Ibid. 

12.  Where  cue  had  a  deed  in  trust  forperson  I  rty  other 
than  slaves,  to  secure  a  debt,  and  he  admitted  :  debt  to  have 
been  paid,  and  permitted  the  person  who  gavi  '  I  to  keep 
possession  of  the  prop<  t'ty,  and  si  i  up  uo  clai  i  I  it.  il  was  held 
that  the  title  to  the  property  revested  in  the  person  who  had 
conveyed  it  in  tiust,  withoul  any  formal  reconveyance.  AlexL 
ander  v.  Springs,  5  ln-d.,  475. 

13.  The  endorsement  by  a  trustee  on  a  deed,  made  in  trust  &o 
swure  debts,  "that  he  had  sold  (a  certain  slave)  and  satisfied 


DEED.— VI.— DEMAND.  339 

the  claims  mentioned  in  the  within  deed  and  retained  a  balance 
of  $ —  in  my  hands"  does  not  purport  to  be,  or  amount  to,  a 
conveyance  by  him,  but  only  shows  that  he  no  longer  held  the 
title  for  the  creditors  secured  in  the  deed,  as  one  of  the  trusts  on 
which  lie  took  it  originally,  but  only  for  the  maker  of  the  deed, 
or  for  such  persons,  as  might  1"-  entitled  through  him,  either  by 
contract  or  act  of  law.     Thompson  v.  Ford,  7  Itvil.  418. 

14.  A  deed  of  trust  for  land,  which  has  no  consideration  ex 
cept  that  the  land  should  be  sold  for  the  payment    of  djgbts,  for 
which  the  bargainee  was  bound  as  surety,  will  not  operate  as  a 
.if  bargain  ami  .-ale     Jackson  v.  Hampton,  s  [red.,  457. 
l.'i.   A  conveyed  to-B  a  tract  oi  laud,    'together   witb  horses, 
tattle,  &c,  and  all  crops  on  the  ground,"  in  trust  to  sell  for  the 
:nt  of  debts.     At  the   date  of  the  deed   there  was  a  corn 
erop  on  the  it  it  was     e.  rv  irds  .1    $1  roj  i  d   by  a  frost, 

and  a  new  crop  was  planted  by  A,  who  had  been  permi 
remain  in  possession.     Afterwards*     seized   this  nev    crop  and 
irtsd  it  to  his  own  use;  and  it  was  lield,  that   B  was  entitled 
•  3ui    l  new  c         and  ci  ul  I    n    over  its  value  in  an  action  of 

.-.     Black  v.  Eason,  10  Ifed.,  308. 
lii.   Where  i   deed  of  trust  is  giv  -  curity  of  several 

■  .  1  si  mi  I   <•  with  usury, 

•  ill  as  to  bo  'e  1  thi  se  debts 

in'   separati  d  unconnected  with  the  usurious  debts. 

Rrannock  v.  Brannock,  10  [red.,  428. 

17.   Whether  a  trustee  ha     undertaken  the  burden  of  execu- 
ting the  trust  is  not  a  question  thai  i  i  calid  execu- 
leed  of  trust,  but  can  only  be  raised  in  a  court  oi 
equity  b]    thi     <  titi  que  trust,  after  its  due  execution   is.estab 
lished  at  law.     McLean  v.  Nelson,  1  Jones,  3!   ; 

Si  e  (Deed—*  H u      a  and  date  of  a  -  (Deed 

— 'it'  thi  construction  of  deeds  and  their  various  parts,  u22. ) 
(Fraud — Conveyances,  agreements,  &c,  fraudulent  as  to  credi- 
tors, 20-21-25-47-50  62  63  64  67-75-77-86-94-95-96.)  (Fraud 
■  — Conveyances  fraudulent  as  to  subsequent  purchasers,  18.) 
(Hu  band  and  Wife — Of  marriage  settlements  and  agreements, 
:;. )  (Registration,  7-8-11-12-13-14-15-16-17-18-  19-24-32-34.) 
(Usury — What  transactions  are  usurious,  15-19-20.)  (Widow— 
Of  her  dower.  9-17-21.) 


DEMAND. 

1.  Where  one  has  a  cause  of  action  against  another,  accruing 
after  a  demand  made,  the  siiin^-  out  of  a  writ   for  that  cause  of 


340         DEMAND.— DEMURRAGE.— DESCENT. — . 

action  though  the  writ  was  in  assumpsit  when  it  should  have 
been  in  covenant,  is  a  denial  id  in  the  strongest  form.  Nixon  v. 
Long..  11  Ired.,  428. 

See  (Contract— Construction  of  contracts  .and  when  an  action 
will  lie,  2-20.)  (Detinue— When  a  demand  is  necessary.) 
(Evidence — Subscribing  witness — Proof  of  handwriting,  33.) 


demurpwY(;e. 

See  (Vessel,  10.) 


DESCENT. 


lit.  Rules  of  'I'1   :i  .:    before  the  act  of 


IV.  Rules  of.  descent  under,  and  j-ince, 


I.  Whether  one  lakes  by  descent   as 
heir,  or  by  purchase. 
II.    Where   the     claim    is   through   an 

alien.  i  the  act  of  1808. 

1.       WHETHER    ONE    CAKES    B       DESCEK1      IS    HEIR,    OE    BY    PURCHASE. 

1.  When  a  person  seized  in  iee,  b  'fact  1784,  devised 

lands  to  one  in  tail,  who  was  hi    '        atlaw,he  bypurchase; 

and  when  the  act  changed  the  e  te  tail  into  an  estah  in  fee  he 
still  held  by  purchase;  and  the  descent  from  him  was  as  from  a 
purchaser,  and  no1  as  one  who  took  the  estate  by  descent. 
'v.  Griffin,  2  Car.  1,  R,  258,  (237.) 

_'.  When  one  has  the  same  estate  given  him  by  will,  as  he 
would  have  taken  had  the  devisor  died  intestate,  he  shall  take 
by  descent;  thus  where  a  devisor  gives  his  land  to  his  two 
dan-liters  in  fee,  to  he  equallj  di\id.  d  between  them,  (they  being 
his  only  children^)  they  take  as  tenants  in  common,  as  they  would 
have  done  had  he  died  intestate;  and  upon  the  death  of  both 
the  daughters  intestate  and  without  issue,  their  mother  took  an 
estate  fi'ir  life  un  ler  the  act  of  1784.  University  v.  Hdstead,  -2  ( !ar. 
L.  R.,  406,  (289.) 

3.   Where  A,  having  several  tracts  of  land,  devises  one  tract 

fee  to  B,  who  is  one  of  his  heirs,  and  another  tract  to  C,  who 


DESCENT.— T.-1I.-III.  341 

is  another  heir,  each  takes  hy  devise  and  not  by  descent.     Rai- 
ford  v.  Peden  10  Ired.,  466. 
See  (Tenants  in  common,  31.) 

II.       WHERE  THE    CLAIM    IS    THROUGH    AN    ALIEN-. 

1.  The  act  of  1801,  permitting  the  nearest  descendant  or  rela- 
tion, not  an  alien,  to   inherit  where  there   are   nearer  relations 
who  are  aliens,  is  not  repealed  by  the  act  of  1808,  which  provides 
iralsystem  of  descents,  because  the  act  of  1808  provides  a 

question 
oity,  and  theref       ;  the  law  of  alienage. 

I  lawks.   272.     (See   Rev.  Code,  ch.  38, 
rule  9.)    See  the  case  in  equity  of  (  5Jonesj 

K'j.  246,  which  affirms  iple. 

III.   RULES  OF  DESCENT  BEFORE  THE  ACT  OF  1808. 

1.  A  son  inherited  lands  from  his  father,  and  died  under  age, 
without  chilil,  brother  or  sister,  but  leaving  a  mother  and  a 

nal  aunt  of  th  ■  half  bloo                 at,  under  the  act  of  1784,  the 

estate  di  ant  of -the  half  blood,  and  did 

not  vest  in  tin  ra  r,  2   Hay..  115,  (276,) 

and  246,  (434.)  (The  rules  of  descent  are  now  altered,  see  Rev. 
Code,  eh.  ."<x ) 

2.  A  died  in  1802   intestate   anil  seized  of  lands,  leaving-  a 

-  and  sister,  a  widow  and  two  children;  and  afterwards 
each  of  his  chilrdren  died  intestate  and  without  issue,  held  that 
their  lands  did  not  go  to  their  mother  but  to  their  uncle  and 
aunt.      Wilsay  v  Saivm  r,  1  Murph.,  493. 

3.  Underthe  act  of  1784,  a  maternal  brother  of  the  half  blood 
is  excluded  from  the  desc  at,  where  there  are  brothers  of  the 
whole  bleed,  the  intestate  having  himself  acquired  the  land  by 

i.     The  half  blood  was   entitled  to  inherit  under  the  act 

of  1784;  1st,  where  there  we  arer  collateral  relations: 

2ndly,  where  the  brother  or  sisti  r  of  the  whole  blood  acquired  the 

.estate  by  purchase.     Pipkin  v.   Goor,  2   Murph.,  '231.     S.   C,  1 

Car.   L.  R.,  10?..  (14.) 

4.  Under  the  act  of  1784,  the  aunt  of  the  whole  blood  on  the 
side  of  the  mother,  from  whom  the  land  descended,  shall  take  in 
exclusion  of  a  brother  of  the  half  blood  on  the  side  of  the  father. 
Hilliard-v.  Moore,  2  Car.  I..  Ik.  590  (392,)  S.  P.  Ballard  v.  Hill. 
Ibid,  602,  (404.) 

5.  By  the  act  of  1799,  bastard  brothers  and  sisters  may  inherit 
from  eachother,  asif  they  were  legitimate.  Arringfon*.  Alston, 
2  Murph.,  321,  S.  C.  N.  C.  Term  R.,  310,  (727.)  (See  Rev.  Code, 
oh.  38,  rule  11.) 

6.  I  'ruler  the  act  of  1784,  if  one  take  land  1  >y  purchase  and  die 


342  DESCENT.— III. 

intestate  and  without  issue,  his  half-blood  are  entitled  to  inherit 
equally  with  the  whole  blood.  Sheppard  v.  Sheppard,  3  Murph. 
333,  S.  P.  Ross  v.  Toms,  2  Hawks,  9. 

7.  Under  the  act  of  1784,  where  lands  caineto  the  person  last 
seized  by  descent  from  a  paternal  ancestor,  the  half  blood  of  the 
maternal  line,  who  were  nearer  in  degree  than  the  relations  on 
the  father's  side,  were  entitled  to  the  lands.  Ballard  v.  Hill,  3 
Murph.,  410. 

8.  Where  an  estate  descended  to  the  person  last  seized  from 
his  mother,  and  he  died  intestate  and  without  issue,  leaving  a 
mV "  of  the  whole  blood,  and  a  sist<  r  of  the  half  blood  on  his 
father's  sill',  it  was  held  that  tin-  uiece  was  entitled,  under  the 
act  of  1-784,  In  the  estate.     Hum  v.  Mar/in.  1  Hawks.  -1-'."'. 

9.  If  a  man  purchase  land  and  die  without  issue,  it  will  de- 
scend  at  first  upon  his  brothers  and  sisters  then  living,  but  if 
any  others  are  born  subsequently,  tl  iialb  iititled; 
and  the  same  law  must  prevail  relative  to  half  blood 

are  entitled  to  inl  2   Hawks,  32J 

the  present  law,  see  Rev.  Code,  ch 

10.  When  those,  who  claimed  the  inheritance,  were  of  equal 

of  them  could  .claim  a  preference  by  represent- 
ing the  acquirin  li  i  pally  entitled  undi  r  th  ■  ad  oi 
1784,  although  some  of  them  were  of  the  half  blood.  Pi  li  ■  in 
v.  Turner,  2  1  [awks,  135. 

11.  Where  thr<  i  brothers,  before  the  act  of  1784,  took  by  de- 
vise an  estate  tail  which  by  that  actwas  converted  into  a  fee  sim- 
ple, and  then  ine  •  died,  leaving  issue,  and  afterward 
another  died  I  sue,  held  thai  bis  i  hare  was  equally  to  be 
divided  between  his  brothers  and  sisters  of  the  half  blood,  and 
those  of  the  whole  blood  and  their  representatives.  Beasley  v. 
Whitehurst,  2  Bawkf    137. 

12.  The  next  collateral  relation  of  the  person  last  seized,  though 
exparte  paterna*,  shall  inherit,  under  the  act  of  1784,  an  estate 
descended  exparte  mat  rna,  though  this  collateral  relation  be  of 
the  half  blood,  and  coi  ifter  the  death  if  the  person 
last  seized.     ,V<  r  lie  v.   Wlieclb'ee,  1  Dev.,  160. 

13.  Where  one  who  was  seized  of  lands  in  fee,  which  she  took 
by  descent  from  her  father,  died  before  the  act  of  1808,  intestate, 
leaving  no  issue,  nor  brothers  nor  sisters,  but  a  mother  and  pa- 
ternal uncles,  it  was  held  that  the  mother  took  no  estate  in  the 
lands, but  they  di  31  mded  immediately  to  the  uncles;  that,  upon 
the  subsequent  birth  of  half  sisters  of  the  propositus,  the  estate 
of  the  uncles  was  divested,  and  became  vested  in  the  half  sisters 
as  the  heirs  of  the  propositus;  and  further,  that  although  a  half 
brother  was  born  subsequently  to  the  act  of  1808,  yet,  as  his 
sisters  were  born  before  that  period,  and  the  estate  of  the  uncles 
had  thereby  become  divested,  the  last  born  son  was  equally  en- 
titled with  his  sisters  to  a  share  in  the  inheritance.       If  the-es- 


DESCENT.— III.-IV.  343 

tate  of  the  uncles  had  not  been  divested  by  the  birth  of  the  half 
sisters  before  the  act  of  1809,  it  would  not  have  been  divested 
by  the  birth  of  the  son  subsequent  to  that  act.  which  altered  the 
course  of  descent  with  regard  to  the  half  blood.  Caldwell  v. 
Black,  5  [red.,  163.  " 

IV.      BTTLES    OF    DESCENT    UNDER,  ASH    SINCE,    THE  ACT  OF    1808. 

1.  In  the  descent  of  acquired  estates  since  tin-  act  of  1808,  the 

only  qualification  for  a  collateral  is  that  he  be  the  nearest  rela- 

f  the  person   last  seized;  but  in  descended  estates  he  roust 

also  be  of  the  blood  of  the  first  purchaser.     Belly.  Doder,  1  TJ&v. 

i.  Where  an  estate  was  purchased  hy  a  father,  and  descend? 
od  froiu  him  to  his  spn,  who  died  leaving  a  mother,  a  maternal 
half  brother,  pati  mal  uncles  of  the  half  iilo.nl.  and  other  more 
distant  paternal  collaterals,   .'  the  proviso  in  the 

(Jth  rul  its  applied  to  cases,  where  a  surviving  brother 

or  sis;  inherit,         well  a      n     tses   where  non 

were  1-  ft,  and  therefore,  thai  til.'   'and  descended  to  the  mother 
.  with  the  remainder  in   I  e   to  it  ■  paternal  uncles  of  the 
half  blood.     Ibid.     (See   Rev.  Code,  ch.  38,  for  the  present  rides 
i    ait.) 

3.  Where  land  was  devised  by  a  grand  father  to  his  grand 
son,  who  would  have  been  one  of  the  heirs  oi  his  grand  father,  if 

I  [  di  d  intestate,  it  3hall,  up'      tl     d 's  dying  without 

issue,  de  cend  to  h  in     1 1       part  of  his  grand  father.; 

than  to  a  half  brother,  who  is  not  of  the  blood  of  the  de- 
visor.     Felton  v.  Bittups,  2  Dev.  and  Bat.,  308. 

4.  Whore  an  estate  had  been  transmitted  by  descent,  and  the 
blood  of  the  acquiring  ancestor  had  become  extinct,  upon  the 

of  the  person  last  seized  intestate  and  without  issue,  the 

estate,  which  had  c e  to   ber  from  a  maternal  ancestor,  u 

held  to  descend  to  her  nearest  collateral  relations,  who  were  s 
a  brother  and  two  sisters  of  the  half  blood  on  her  father's  side. 
University  v.  Brown,  1  [red.,  387. 

5.  A  died  in  the  year  1777,  leaving  two  sons,  Thomas  and 
George,  of  whom  Thomas  was  the  eider,  and  was,  by  the  law 
i>i'  the  State  as  it  then  stood,  sole  hear  to  his  father.  A  devised 
the  land  in  controversy  to  his  second  son,  George,  who  died  in 
1839,  intestate  and  without  issue,  leaving  surviving  him  a  sister 
of  the  whole  blood  under  whom  the  defendant  claimed,  and  the 
issue  of  a  sister  of  the  half  lilo.nl  on  the  mother's  side,  who  arc 
the  lessors  of  the  plaintiff;  if  was  held  that,  by  the  rules  of 
descent  prescribed  in  the  act  of  1808,  the  issue  of  the  sister  of 
the  half  blood  took  one  moiety  of  the  land.  Burgwynv.  Dev- 
eroix.  1  Ired.,  588.     (See  Rev.  Code,  ch.  38,  Rules,  4  and  5.) 

6.  Where  an  estate  comes  to  a  person  through  a  series  of 


344  DESCENT.— IV. 

descents  or  settlements,  and  that  person  dies  without  issue,  it 
results  back  to  those  of  his  collateral  relations,  who  would  be 
heirs  of  the  ancestor  from  whom  it  originally  descended,  or  by 
whom  it  was  originally  settled.  Therefore,  where  B,  a  daughter, 
took  by  descent  from  A,  her  father,  and  C,  the  daughter  of  B, 
took  by  descent  from  B,  and  then  died  intestate  and  without 
issue,  leaving  uncles  and  aunts  who  were  not  of  the  blood  of  A, 
and  great  uncles  and  aunts  who  were  brothers  and  sisters  of  A, 
it  was  held,  that  the  land  descended  to  the  latter.  WUkerson  v. 
Brach  n,  2  lied.,  315. 

7.  Tarnar  Sanderlin  had  issue,  a  legitimate  son,  fcaac  Sander- 
lin,  and  an  illegitimate  daughter,  named  Zelia,  who  inter-mar- 
ried with  Lemuel  Sawyer,  and  they  afterwards  died  leaving  an 
only  child,  tii  whin. i  the  land  in  dispute  was  ■■'"  rised  by  her 
grandmother  Tamar.     This  child  then  died   without  issue,  lcav- 

ber  neares  an  uncle  and  aunt  who  were  the 

brother  and  sister  ol  lier  deceased  father,  and  her  maternal 
uncle,  the  said    Isaac   Sanderlin;  and   it  ,  C.  J. 

that  no  part  of  the  bind  descended  to  Isaac  Sander- 
lin, under  whom  tb  it  cla  I  but  the  win  I  ent  t< 
the  paternal  uncle  and  aunt,  who  are  the  lessors  of  the  plaintiff. 
Ehfpin,  C.  J.,  was  of  opinion  that  the  land  descended  equally  to 
the  paternal  and  maternal  uncles  and  aunt.  Sawyer  v.  tfnaijcr. 
6  [red.,  407. 

8.  [fa  sister  be  illegitimate,  her  brother,  who  is  also  a  ba 
cannot  take  by  descent  from  the  legitimate  daughter  of  his  sister. 
Ehringhavs  v.  Carticright,  8  [red.,  39. 

9.  A  testator  devised  as  follows :  "I  lend  the  trad  of  land  I 
now  live  on  unto  my  wife,  during  the  time  she  remains  a  widow; 
and  immediately  after  her  marriage  or  death,  I  give  all  the  be- 
fore mentioned  estate  to  my  loving  wife's  heirs  by  consanguinity, 
with  the  exception  of  '..  M.'  The  testator  died  in  May,  1837, 
and  his  will  was  proved  in  the  same  month,  when  the  widow  dis- 
sented;and  in  August  following,  she  married  A  F  and  shortly  af- 
terwards was  delivered  of  a  child,  of  which  she  was  pregnanl  at 
tin.'  death  of  the  testator.  The  child  lived  about  six  months 
and  died,  and  within  a  few  months  after  the  death  of  that  child, 
she  had',  by  A  E,  a  child,  the  lessor  of  the  plaintiff.  The  testa- 
tor's wife  had  five  brothers  and  sisters,  when  the  testator  made 
his  will  and  when  he  died.  The  defendant  is  the  heir  ex  ,  arte 
•paterna  of  the  testator's  posthumous  child,  who  was  the  heir  of 
the  testator;  it  was  held  that  the  lessor  of  the  plaintiff  could  not 
claim  as  heir- of  the, deceased  child,  because  it  did  not  appear 
that  he  was  horn  within  ten  months  after  the  death  of  such  child, 
and  because  even  if  so  bora,  he  was  only  an  heir  ex  parte  ma- 
terna,  and  therefore  was  not  extitled  to  the  land  devised  to  the 
child,  either  by  devise  or  descent  from  the  father;  and  it  washeleC 
further,  that,  on  the  marriage  of  the  widow,  the  land,  vested abso- 


DESCENT.— IV.— DETINUE— I.  345 

lutely  in  the  child,  and  upon  its  death  descended  to  its  heirs  ex 
parte  paterna.     Flora  v.  Wilson,  13  [red.,  344. 

10.  Where,  by  the  death  other  grandfather,  (who  was  the 
person  last  seized,)  ;i  child  was  entitled  to  reversion  in  land,  i  x- 
pectanl  on  the  termination  of  a  life  estate,  and  the  child  died, 
without  isssue,  before  tin:-  expiration  of  the  lit.-  estate,  it  was  held 
that  thi'  inheritance  did  not  vest  for  life  in  the  parent  of  the 
de  ased  child,  under  the  6th  rule  of  decents;  but  that  th  pi  c 
son  entitled  to  take  was  one  who  was  heir  to  the  person  last 
seized,  to  wit,  the  grandfather.  Lawrence  v.  Pitt,  1  Jones,  344. 
(The  rules  of  ire  now  altered.  See  Rev.  Code,  ch.  38, 
sees.  ]  and  •!. ) 

11.  Where  real  estate  belonging  to  infants  ha:  !         con 

into  money,  under  the  deer if  a  court  of  equity  for  partition, 

the  fund  will  continue  to  have  too  character  of  real  :  rid 

ding  to    the   la  w  of  descents,  until  the 
owner  lias  co  i  ■ 

upon  'i  I  \   some  .-      of     i  .  'dwards,  8  Jones,  336. 

See  (Tenants  in  common  : 


DETIiN 


I.   ..  hen   the  action  will  or  will  not 
lie. 
II.  Parties  to  the  action. 


III.  When   a  demand  is  necessary,  and 

n    iot 

IV.  Of   the    pleadings,  evidence    judg 

raent  and  execution. 


I.       WHEN    TH!J    ACTION    WILL    OB    WILL   NOT    LIE. 

1.  Detinue  will  lie  for  a  negro,  which  had  been  demanded 
while  in  possession  of  the  defendant,  but  which  he  had  deliver- 
ed, before  the  issuing  of  the  writ,  to  the  perscaa  of  whom  he  had 
hired  him,  so  that  the  negro  was  not  thee  in  his  possession. 
Merritt  v.  Warmouth,  1  Hay.,  12,  (16.) 

"2.  Where,  on  a  demand  previous  to  bringing  detinue,  the  de- 
fendant  acknowledged  that  the  negroes  wore  in  his  possession, 
held  that  he  could  not  defeat  the  action  byproving  that  he  had 
given  them  to  his  son-in-law  previous  to  the  demand.  Flowers 
v-  Glasgow,  1  Hay.,  122,  (141.) 

3.  Detinue  will  not  lie  against  an  executor  for  the  detainer  of 
his  testator.      Walker  v.  Hawkins,  1  Hay.,  398,  (458.) 

4.  To  support  detinue,  the  plaintiff  must  have  the  right  of 
action  at  the  time  ol  the  trial,  as  well  as  at  the  time  when  the 
action  was  brought.     Here  the  slave  had  been  sold  by  execution 


346  DETINUE.— I. 

pending  the  trial,  by  direction  of  plaintiff.    Shepard  v.  Edwards, 
2  Hay.,  186,  (387.) 

5.  A  special  property  in  a  trustei .  derived  from  the  order  of  a 
court  in  Virginia,  accompanied  by  possession  raider  the  ord$r, 
is  sufficient  to  maintain  detinue  for  slaves.  Wade  v.  Edtoards, 
Conf.  R  >p.  IK',,  (482.)     S.  C,  2  Hay.,  221,  (395.) 

6.  Detinue  lies  in  every  case  where  the  property  is  detained, 
and  no  regard  is  had  to  the  manner  in  which  the  defendant  ac- 
quired possession.  Johnston  v.  Pasteur,  Conf.  Rep.  Hi!.  (520.) 
S.  C,  2  Hay.,  306,  (495.) 

7.  The  possession,  necessaryto  renders  defendant  liable  in  an 
action  of  detinue,  need  not  be  an  actual  possession,  but  may  be 
one  in  a  legal  sense,  as  where  another  holds  as  bailee  a1  will,  or 
tor  the  benefil  of  the  deti  ndant.  Therefore,  where  it  appeared 
merely,  that  the  defendant,  before  suit  brought,  "put  the  slave 
in  question  in  possession  of  his  brother-in-law,"  but  without  any 
written  transfer  and  without  consideration,  it  was  held  that  it 
was  proper  te  b  1  i.  to  thejurj  to  say  how  the_  possession  was — 
whether  in  tl  brother-in-law — and  that  the 
plaintiff  could  not  be  non-suited,  upon  the  ground  that  there 
was  no  eA'ideuce  of  his  possession  at  the  time  of  bringing  the 
suit.     Jones  v.  Green,  1  Dev.  and  Bat.,  354. 

8.  The  gist  of  the  action  of  detinue  is  the  wrongful  detainer 
at  the  date  of  the  writ,  and  not  the  original  taking  of  the 
chattel.  It  is  generally,  therefore,  incumbent  on  the  plaintiff  in 
this  action,  to  showan  actual  possession  or  a  general  controlling 
power  over  thi  chattel  by  the  defendant,  at  the  date  of  the  writ. 
And  if  the  defendant  had  not  the  actual  possession  at  the  time 
when  the  writ  was  sued  out,  it  cannot  be  said  that  he 
is  in  law  liable  to  the  action,  but  only  that  he  is  liable,  if, 
upon  the  evidence,  the  jury  should  infer  that  he  had  a  general 
controlling  power  ovei  the  possession  at 'that  time.  Charles  v. 
Elliott,  4  Dev.  and  Bat.,  468. 

9.  If  one,  having  a  right  to  the  possession  of  chatties,  make  a 
demand  therefor,  which  is  refused,  and  thereupon,  and  before 
the  writ  is  sued  out,  the  defendant  part  with  the  possession,  the 
action  of  detinue  may  be  maintained;  for  the  transfer  of  posses- 
sion after  demand  is  treated  as  an  act  done  in  elusion  of  the 
plaintiff's  action.     Ibid. 

10.  Where  two  persons  took  from  the  plaintiff,  at  the  same 
time,  several  negroes,  oni  claiming  and  keeping  possession  of  a 
certain  portion  of  them  as  his  own,  and  the  other  in  like  manner 
claiming  and  holding  possession  of  another  portion  as  I  is,  it  was 
hel'.',  that  the  plaintiff  could  not  maintain  a  joint  action  of  de- 
tinue against  them,  though  he  might  have  had  a  joint  action  of 
trespass.     Blade  v.  Washburn,  '1  I  red.,  414. 

11.  The  gist,  of  the  action  of  detinue  is  not  the  original  taking, 
but  the  wrongful  detainer.     Ibid. 


DETINUE— I.  347 

12.  A  conveyance  of  slaves  was  made  to  a  trustee,  in  trust  for 
the  sole  and  separate  use  of  a  married  woman,  who  after  the 
death  of  her  husband  conveyed   them   to  the  plaintiff,    and  It 

\d,  that  he  could  not  recover  the  slaves  a1  law,  as  he  had 
acanired  only  an  equitable  interest  by  his  purchase,  the  legal 
title  being  still  in  the  trustee     Jones  v.  Strong,  6  [red.,  367. 

13.  In  an  action  of  detinue,  the  plaintiff  must  show  ai  actual 
possession  in  the  defendanl  of  the  thing  •'■  mandi  d  or  a  control- 
ling power  over  it,  atthe  time,  or  shortb  before,  the  writ  issues. 
Hence,  where  A,  having  a  claim  for  a  negro  slave,  sued  out  a 
writ  of  replevin,  under  which  the    sherifl   seized  a  ii    ;n     a  the 

ion  ofB,  which  writ,  for  som  •  cans.-,  was  quashed  it  was 
held,  that  A  could  not  sustain  an  action        d  linst  B, 

until  t!  id  actually  1-  tored  to  the  possession  of  B. 

Foscue  v.  Ei  bank,  10  h-ed.,  424. 

14.  Where  A  was  entitled  bo  a 

threatened  with  a  s       ii    i  ng  the 

slaves  out  of  the  Slate,  in  con  ii  -'  ;    sh  uld  be 

.  reed  that  the     '  h  >uld  be  ]  e  pos- 

.  of  B,  who  ws  payhei  the   mies  i ually,  and  they 

ccordingly  placed  in    B's   po 

■d  all  her  legal  interest  in  the  slaves  to  B,  there 
being  i  sufE  :ient  cons  ider  it  ion  and  an  a<  tual  di  !  s  ■  ;  of  the 
slaves;  tha     A,  therefore,  could  nut  supporl  nor  any 

other  action  at  law  for  them:  but  h  if  B  jaded  to 

pay  ever  the  hires,  was  in   equity.     Henry  v.  Wilson,  11  I  red., 
285. 

15.  Wherea  slave  was  stipulated  to  be  thereafter  conveyedin 
writing  to  a  trustee,  to  the  separate  i  me  covert,  and  was 
put  into  the  possi  ssion  of  the  trustee  for  another  purpose,  but  it 
was  afterwards  formally  agreed  by  the  seller  and  the  trustee, 
that  the  latter  was  to  be  thenceforth  invested  with  the  title  to 
the  negro,  though  such  negro  was  absent  at  the  time;  it  was 
held  that  the  trustee  was,.a1  least,  the  bailee  of  the  former  owner, 
and.  as  such,  was  entitled,  to  recover  him  in  an  action  of  detinue 
against  one  wrongfully  withholding  him.  Thompson  v.  Bryan,  1 
Jones,  340. 

16.  In  order  to  sustain  the  action  of  detinue,  even  against  a 
wrong-doer,  the  plaintiff  must  shew  net  only  a  right  of  prop- 
erty, but  a  right  of  -presenl  possession  also.  O'Neal  v.  Baker,  % 
Jones,  168. 

17.  An  action  of  detinue  cannot  be  maintained  by  one  of  sev- 
eral tenants  in  common  of  a  chattel,  even  though  the  defendant 
should  fail  to  plead  the  non-joinder  of  the  others  in  abatement; 
but  the  objection  may  be  taken  upon  the  general  issue,  or  by 
demurrer,  or  by  a  motion  in  arrest.      Cain  v.  Wright,  5  -Jones.  282. 

See  (Bailment,  5.)  (Limitations — When  the  statute  will  or 
fill  not  bar,  18-23-48.)     (Tenants  in  common,  15.) 


348  DETINUE.— II.-III.-IV. 

II.       PATIES    TO    THE    ACTION. 

1.  The  action  of  detinue  survives  against  the  'personal  repre- 
sentatives of  the  defendant.  Daniel  x.  (Mb,  .Mar.,  42,  (.'55,)  and 
77.  (.SO.)     (See  llev.  Code,  ch.  1,  see,  1.) 

2.  A  gaye  a  slave  to  his  niece,  agreeing  to  keep  him  during 
his  life,  and  afterwards,  during  A's  life,  B  married  the  niece,  and, 
after  A's  death,  he  was  permitted  to  sustain  detinue  in  his  own 
name  for  the  slave.      Walker  v.  Mebane,  1  Murph,  41. 

III.    WHEN    A    DEMAND    IS    NECESSARY,    AND   WHEN   NOT. 

1.  A  demand  is  necessary  to  sustain  this  action,  and  it  must 

le  by  the  plaintiff  himi  ae  one  by  his  autl 

■;  known  tin-  authority  at  the 
v.  Bush,  1  Hay.,  28,  (37.)         •  contra   An  2  Hay.,    13&, 

I 

2.  No  demand  is  neci  -■•  ny  previous  to  an  action  of  d 

:ars  thai   when  the  action  was  brought, 
the  defendanl  i  hem  as  his  own.     But  if  i 

necessary,  a  \  ''ml  plaintiffs  would  he 

sufficient,  where  it  was  not  objected  to  by  the  defendant,  at  the 
time  it  was  made.     Knight  v.  //«/'/,  2  Dev.  ami  Bat.,  125. 

3.  In  the  action  of  detinue,  a  previous  demand  is  ml  neces- 
sary, if  the  defendant  had  th  pi  on  med  the  prop- 
erty at  the  institu  -nit;  and,  it  seems,  that  a  demand 
is  not  necessary  in  any  <  p1  to  fix  onethen  in  possession 
with  a.  liability  to  this  kind  of  action,  although  he  may  part  with 
the  possession  before  suit  actually  brought,  or  except  for  the 
purpose  nt  putting  an  end  to  a  bailment.  Jones  v.  Green,  4 
Dev.  and  Bat.  354. 

4.  Persons  entitled  to  a  legacy  of  a  remainder  in  slaves,  after 
the  death  of  a  tenant  lor  life,  nerd  not  make  a  demand  of  one 
wh®- claims  them  as  his  own,  and  they  may  recover  damages 
from  the  death  of  the  tenant  for  life,  when  their  right  of  action 
accrued.     Miles  v.  Allen,  Li  Ired.,  88. 

IV.      OF    THE  PLEADINGS,    EVIDENCE,  VERDICT,    JUDGDMENT    AND    EXECUTION. 

1.  In  detinue  for  a  slave,  the  plaintiff  may  proceed  for  dam- 
ages and  costs,  though  the  slave  has  been  restored  to  him  by 
tiie  defendant  after  issue  joined.  Merritt  v.  Merritt,  Mar.*  18, 
(1.)     (Overruled  by  Morgan  v.  Cone,  1  Dev.  and  Bat.,  234.) 

2.  In  detinue  the  plaintiff  shall  have  judgment,  though  the 
slave,  for  which  the  action  was  brought,  has  died  since  the  de- 
mand Skipper  v.  Barg,mve,  Mar.,  74,  (7(5.)  (Overruled  by 
Bethea  v.  McLmnon,  1  Ired.,  523.) 

3.  Where  detinue  is  brought  for  several  articles,  whether  the 


DETINUE.— IV,  349 

jury  must  assess  the  value  of.  and  dam  .  each  article 

separately,  and  3ome  otl  ed,  in  the  note  to 

Leuris  v.' Williams,  1  Hay..  150,  (172.) 

4.  A  recovery  in  trespass  is  not  a   bar  in   detinue,  unL 
damage  lasswere  given  for  the  value  of  the  property, 

uid  that  must  be  left  to  the  jury  upon  tl  id    lci 

Holhman,  2  Hay.  328,  I 

5.  When  a  writ  in  detinue  laid  no  value  forthe  negroesnamed 
in  the  writ,  the  defendant  should  demur,  -is  it  forms  no  ground 
for  am  judgment,  after  a  \.  rdict  finding  the  value. 
Hutchins  v.  McLean,  Conf.,  Rep.,  110,  (240.) 

6.  It'  in  detinue  the  jury  find  for  the  plaintiff  a;id  assess 

:s  forthe  detention  oi   I  but  do  nut  find  their 

value,  the  court  will  not  order  a  i  ■  vv  trial  in   toto,  but  will  order 
a  distringas  to  issue,  and,  ifuponthat  thi   b  tv<     '■•■•  no!  d 
to  the  plaintiff,  then  a  writ  of  enquiry  si  all   issue  to  ascertain 
the  value  of  the  slaves,  and  for  such  value  the  plaintiff  m 
his  option,  take   out  either  ay/,  fa.  or  a  ca.  so.     Key  v.  , 
Murpn.,  523. 

7.  In  detinue,  if  the  defendant  relies  upon  his  possession, 
either  as  a  bar  to  the  action,  or  as  part  of  his  title,  the  burthen 
of  proving  its  length  lies  upon  him.  Darden  v.  Allen,  1  JJev.. 
466. 

8.  Every  possession  is  presumed  :  n  the  title  and  for 
the  benefit  of  the  pos  :  or.  When  the  title  and  possession 
have  been  shown  to  ha'*  on  pi  intiff,  that  posses- 
sion is  taken  to  have  continued  until  another  arose  in  some 
other  person :  audit  is  not  incumbent  on  the  plaintiff  to  prove 
an  ac    lal                  a  in  himself  ■within  three  years  before  action 

dv  a  divestment  of 
ossession,  bj  an  adverse  one  in  himself,  or  some  other 
i  with  whom  he  could  connect  hi  i  -  ion.  But  in  a 
i  i  in  lee  will  either  de- 

stroy tii  ir  the  acti 

'.).  VV  or  a   slave,  he  was 

'  ■  "ry  U1 
not  evidence  oi  title  int  te  plaintiff,  in  another  suit 
brought  againsi    the  purchaser  at  the  sheriff's  sale.     Briley  v. 
r,  2  I),- v..  2. 
lit.  A  verdict  and  judgment  in  detinue  are  conclusive  as  to 
the  tit  I'  te  parti  :  but  a  purchaser 

at  a  sheri  f's  sale  is  not  a  privy  to  the  defendant  iu  the  execu- 
tion.    Ibid. 

11.  An  action  of  detinue  is  an  affirmance  of  a  continuing  title 
to  the  thing  detained;  the  plaintiff  does  not,  as  lie  does  in  an 
action  of  trover,  disaffirm  a  continuance  of  title  in  himself,  but 
may  sustain  an  action  for  the  same  chattel  against  a  third  per- 
son, or  even  against  the  same  party,  although  he  may  have  ob- 


350  PF.TISTE.—  IV. 

tained  a  Former  judgment  for  it.  provided  that  judgment  has 
-  itisfied     [bid. 

12.  Where  the  plaintiff  bailed  a  slave  for  life,  and  after  the 
death  of  the  bailee,  lus  executors  continuedin  possession,  it  teas 

execu- 
ition  after  the  death  of  the  testa! 

dnedin  the  pre*  :  there 

was  do  pi  ation.     Mobley  \ , 

Dev., 

13.  \\  onal  property  was  levied  on,  but  no1  takeninto 

the  sheriff,  and  afterwards  an  action  of  detinue 
ced  for  the  j1   the  original  de- 

fendant, pending  whicl  riff,  it  was  held  that 

elated  back  to  the  levy,  and  there- 
3  Dev.j 
338. 

14.  1  luponth    thing 
sued  t.  suit,  obtains 

defeats  his  own  suit,  and  i 
.  1  Dev.  and  l'>at.-  . 
i  detinue  for  slaves,  the  execution 
.  the  defend- 
aintiff,  the  title  to  the  propi  rty  will 
defendant,  by  rel:  the  time  of 

ssue  born  of 
_ 
the  execution,  will,  in  elong  to  bim.      I 

.  I    '  ■  ■ 

16.  The  plaintiff  has  a   rigid  to  the 

.    li'  to  be   had:  audit  is   not  in  the 
ssessed -1 
_ 

17.  :  mes  to  the  fachattel  pend 
action  of  deti                   mima  fetch  claims  under  the  defendant, 
and  i  fi  3  1  »ev.  and 

18    Fh  an  action  of  di  tinue,  the  defendant  may  be  pel 

•e  the  last   continuance,  the  d(  ath  of  a 
slave  named  in  the  declaration;  and  in  such  a  ease   the  jury 
such  death  has  happened  wl 

without  his  fault,  they 
part  of  the  value  of  the  slave  in  t. 
_    ■  .  i  ut  if  it  Las   happen 

dant,  then  they  may  inch  le  the  value  in  su< 

16.   Evid  i  I  of  the  all  s 

icially  presented  by  plea:  and  this  pleu, 


DETINUE— IV,— DEVISE.— I.  351 

may  be  received,  if  properly  verified,  at  any  moment  I-  fore  the 
verdict  is  rendered.     And  when  received,  under  a  proper  plea, 
the  jury  should,  nevertheless,  gn  e  d; 
tli''  slave  while  he  was  living.     Ibid. 

20.  In  an  action  of  'I'  tinue,  a  pL  c] 

fcoole "  pported;  bui 

added  the  words  "being  the  same  formerly  owned  by  one  Bur- 

kett,"  I 

March  v.  Leckie,  13  [red.,  L72. 

21.  Where;  was  brought  for  a  !.  upon 

carried  1  i  judg- 

ments L  there  in  favor  of  the  plaintifl  covery 

of  such 

■  final  judgment,  a  child  was  born  of  the 
that  tli"  plaintiff  might  recover  such  child  by 
from  th 

266. 


\)\\  [SE. 

who  can  takf  -  uction,  as  to  what  i r, 

i;    Construction,  as  t<>  what  it  inclnd 

I.     CONSTRUCTION,    AS    TO    WHO    TAN    T 

LA  -  sr  their  main!  void, 

slaves  canni  t   take  it.     Cunningham  v.  ( 
Conf.  Rep.,  353,  (432.)     S.  C.  Tay.  29a,  I  I 

2.  A  testator  devised   as  follows:     "1  give  to  my  son  T.  and 
my  da  lighter  P.,  who  v.  a 

iow  the  wife  "1'  < '.  B.,  all  the  remaining  pari 
i  qually  divided  in   fee  t  not- 

withstanding 

for  those  wiS  how  that  sin   was  born 

in  lawful  wedlock,  and  that  this  mi  ription  in 

was  C  '  the  other  more  certain   <i  which 

tl  e  devisee  intended.     Ehringhaitsv,  Gat 
8  [red.,  39. 

[opart  of  a   description  is  to   be  arbitarily  •■ 
overy  part  of  it  is  to  be  respected;  especially  when  a  person  can 
be  found  answering  the  whole  description.     But  when  there  is 


352  DEVEE.—I.-II. 

no  such  person,  and  where  the  will  orothel  tnslr nt  describes 

the  party  in  several  distinct  particulars,  by  some  of  which  that 
person  may  be  known  from  all  others,  then  a  mistake  in  some 
oth  r  one  of  those  particulars  will  not  defeat  the  dispositions 
Ibid. 

4.  A  testator  devised  certain  lands  1"  his  wife  during  widow- 
hood, and  after  marriage  or  death  to  his  wife's  heirs  by  consan- 
guity,  with  the  exception  of  one  sister.  The  wife  was  pregnant 
at  the  time  when  the  will  was  made,  though  this  was  unknown  to 
the  testator,  and  the  child  was  afterwards  born,  and  died  during 
the  life  of  his  mother;  and  the  mother  then  died  leaving  broth- 
ers and  sisters  her  only  heirs,  li  was  held  that  on  the  birth  of 
the  child  the  remainder  vested  in  him,  to  the  exclusion  of  the 
brothers  and  sisters  of  the  wife,  and  on  his  death  vested  in  his 
heirs  at  law.     Watkinsv.  Flora.  8  Ired.,  374. 

5.  The  construction  of  a  will  must  depend  upon  the  will 
itself,  and  cannot  be  controlled  by  parol  proof  of  an  intention, 
as  to  particular  persons  to  take  under  the  desase,  for  in  effect 
that  would  be  to  make  the  will  by  parol;  though  the  con- 
struction  may  be  aided  by  evidence  of  the  state  of  the  family. 
Ibid. 

(j.  Where  a  testator  devised  his  land  to  his  wife  and  added, 
"if  she  should  have  a.  child  by  me,  for  the  child  to  have,  at  her 
death,  all  my  land,  and  in  ease  she  should  die  without  an  heir, 
for  the  land  to  go  to  her  nearest  relation,"  and  the  wife  died  in 
the  life  time  of  the  testator,  leaving  her  father  her  nearest  rela- 
tion :  it  toas  held,  that  the  limitation  over  did  not  depend  upon 
the  vesting  <of  the  life  estate  of  the  wife,  as  a  condition  prece- 
dent, and  her  father,  therefore,  took  in  preference  to  the  heir  of 
the  testator.     Boachv.  Knight,  Busb.,  103. 

7.  A  devise  of.  a  trad  of  land  to  the'  son  of  the  testator,  "if 
he  be  living  and  returns  to  the  county  of  Orange,"  is  a  gift  of 
the  land  on  condition  of  the  son's  ri  turning  to  Orange  and  n  ak 
ing  it  his  domicil,  especially  when  other  provisions  of  the  will 
seem  to  show  the  testator's  expectation  and  desire  that  th  :  sou 
should  reside  in  Orange  after  the  testator's  decease.  1!<<  ves  v. 
Craige,  1  Winst.,  209. 

II.    CONSTRUCTION,    AS   TO   WHAT    IT    INCLUDES. 

1.  In  a  devise,  the  word  ''estate"  comprehends  all  a  man  can 
dispose  of,  real  as  well  ;is  personal.  Mablyv.  Btainback,  Mar., 
75,(78.) 

2.  Lands,  purchased  alter  the  making  of  a  will,  do  not  pass  by 
any  devise  in  it.  Johnston  v.  //mil//,  'lay.,  303,  (132.)  (Altered 
by  statute.     See  Rev.  Code,  ch.  119,  sec.  6.) 


DEVISE.— II.  353 

3.  A  devise  by  a  testator  of  all  his  estate  passes  land.  Sutton 
v.   Wood,  Conf.  Rep.  202,  (312.) 

4.  Lands  acquired  subsequent  to  a  devise  do  not  pass  by  it, 
although  the  devisor  expressly  refers  to  all  the  lands  lie  might 
havi'  at  bis  death.     But   lands   so  acquired  will  pass  by  a  new 

publicati 1  the  will.     Ji<j<jrts  v.  Money,  1  Murph.,  258.     (See 

note  to  sec.  2  above.) 

5.  The  word  "I  gacy"  being  often  used  among  common  peo- 
ple to  signify  a  devise  of  land,  as  well  as  a  bequesl  of  persona)] 
property,  it  shall  be  construed  to  convey  land  when  Buch  appears 

i  the  intention  of  the  testal  <v.     Holmes  v.  Mit 
Murph.,  2-28,  S.  C.  1  Car.  L.  R.,  107,  (1-1.) 

!l  .V  man  devised  ••to  his  grandson,  A.  I...  350  acres  of  land, 
being  the  upper  part  of  a  tract  of  Too  acres;  and  to  his  grand- 
daughters, P.  L.  and  J.  L.  tin-  lower  part  of  the  same  tract,  to  be 
equally  divided  between  them."  The  tract  of  land  contained,  in 
fact,  1100  acres,  and  it  was  held  that  the  grandson,  A.  L.,  toflk 
only  350  acres,  and  the  grand-daughters  '■'<!■>  acres  each.  Williams 
v.  Lane,  2  Car.  1..  R.  266,  (246.) 

7.  The  description  of  a  tract  of  land,  as  containing  a.  specific 

■  of  acres,  is  the  same  as  the  description  of  a  tract  con- 
taining so  many  acres  more  or  less.     Ibid. 

8.  <  )ne  devised  to  A  his  large  tavern  in  Fayetteville,  excepting 
the  room  over  the  store  which  is  to  belong  to  the  store,  and.  by 
another  clause,  lie  devised  to  his  wife  the  store  adjoining  the 
tavern;  it  was  held  that  the  ground  in  the  rear  of  both,  buildings 
which  adjoined  each  other,  passed  under  the  devise  of  the  tavern: 
forthe  exception  of  the  room  over  the  store  evinces  that  tin  ■  devi- 
sor belii  red  that  that  too  would  have  passed  with  the  tavern  but 
for  ill  e  cception,  and  further  that  n  curtilage  is  necessary  to  a 
tavern  in  town,  but  not  to  a  store.  Barge  v.  Wilson  2  C  r  I 
!:..  396,  (278.) 

9.  Winn.'  mie  devises  a  mill  to  on.'  of  his  sons,  and  an  entry 
of  land  to  another,  the  land  covered  by  the  mill  pond  will  pas's 

'vise  of  the  mill,  though  it  is  within  the  boundaries 
of  the  entry.     Lee  y.   Woodward.,  X.  C.  Term  1,'.,  LOO,  (537.) 

10.  Where  a.  devisor,  who  owned  a  large  body  of  land,  composed 
of  several  tracts,  acquired  at  differenl  times,  and  known  by  differ- 
ent names,  and  was  living  on  one  of  the  tracts  known  by  a  distinct 
bame,  devised  as  follows:  "]  give  and  bequeath  to  my  son,  W. 
II.  t;.,  the  tract  of  laud  whereori  1  now  live,  including  the  plan- 
tation, together  with  all  the  appurtenances  thereunto  belonging; 
;/  w  is  //c/(/that  ~V\  H.G.  took  only  the  tract  on  which  the  devisor 
lived,  the  word  appurtenances  comprehending  only  thingsinthe 
nature  of  incidents  to  that  tract.  Had  the  devisor  said  tiie  lands 
on  which  he  lived,  the  construction  might  have  been  different 
Hehne  v.  Guy,  2  Murph.,  341. 

11.  Where  there  was  a  devise  of  land  by  a  devisor  to  his  sou 

23 


354  DEVISE.— II. 

H,  and  others,  with  a  provision  that,  upon  the  coming  of  age  of 
the  son,  the  executor  might  sell  the  land,  if  the  son  wished,  and 
divide  the  money;  and  the  son,  after  he  came  of  age,  sold  tho 
land,  and  the  executor,  afterwards,  confirmed  the  sale  and  exe- 
cuted a  deed  for  it,  it  wns  held  that  ejectment  would  not  lie 
against  the  purchaser,  by  cue  claiming  title  under  the  devise, 
either  to  try  that  title  to  the  land,  or  to  recover  the  rents  which 
may  have  accrued  therefrom  before  the  sale.  Whitted  v.  William*, 
?>  Murph.,  156. 

12.  These  words  in  a  devise,  "  I  give  and  bequeath  all  I  possess 

in  d s -and  out  of  doors,"  will  pass  real  estate.      Tolar  v.  Tolar, 

:'.  Hawks,  74. 

13.  In  a  will,  real  estate  does  not  pass  by  the  words  "all  my 
properly  and  possessions,  consisting  of  both  personal  and  perish: 
able,"  with  the  further  expressions  "that  they  should  pay  my 
debts  out  of  it.  and  the  residue  to  be  equally  divided  between 
tjiem,  to  have' ami  to  hold  to  them,  their  heirs  and  assigns  fore- 
ver."   Clark  v.  Hyman,  1  Dev.,  382. 

14.  The  rule  is  clear  that  the  heirs  at  law  are  not  to  he  disin- 
herited, unless  the  intention  of  the  devisor  is  so  expressed  as  to 
convey  a  necessary  implication.     ll>i<l. 

15.  Where  a  tractor  land  was  given  to  A,  by  his  father,  except 
two  acres  given  to  B,  another  son,  and  before  the  severance  of 
the  two  acres  A  purchased  them  from  B,  and  held  and  lived  on 
the  whole  together,  during  his  life,  as  one  estate,  and  by  his  will 
devised  "the  land  whereon  I  now  Live,  "the  whole  passes  thereby, 
although  further  described  as.  of  the  quantity  it  would  have  con- 
tained had  there  been  an  actual  severance.  Dodson  v.  Green,  4 
Dev..  488. 

16.  The  number  of  acres  in  a  tract  of  land  is  never,  unless 
plainly  so  intended,  a  mailer  of  description.     Ibid. 

17.  In  a  will,  the  words  "my  will  is  that  all  my  property,  that 
I  have  not  given  away  and  lent,  to  be  equally  divided  between, 
Ac,"  carries  to  the  devisees  every  reversionary  interest  of  the 
testator,  which  has  not  been  before  specifically  devisi  d,  whether 
in  his  contemplation  or  not,  and  whether  known  or  unknown  to 
him,  unless  there  is  a  manifest  intention  to  confine  them  to  other 
interests;  and  a  subsequent  contingent  limitation  to  the  children 
of  one  of  the  devisees  is  not  sufficient  to  raise  this  invention. 
Sorrell  v.  Hoskins,  2  1  >ev.  and  Bat.,  479. 

18.  The  words  "all  my  property"  include  everything  which 
the  testator  has,  unless  the  intention  to  the  contrary  be  plain. 
Ibid. 

19.  A  devise  by  a  testator,  of  his  -'home  plantation."  will  not 
carry  town  lots,  laid  off  on  a  part  of  that  tract  of  land  by  com- 
missioners under  an  act  of  the  legislature',  passed  at  the  instance 
of  the  devisor,  when  it  appears  that  the  lots  have  been  occupied 
for  many  years  as  part  of  the  town,  although  the  title  to  the  lots 


DEVISE.— IT.  355 

may  still  be  in  the  devisor.  Hampton  v.  Cowles,  4  Dev.  and 
Bat,  16. 

20.  A  testator  devised  to  his  wife  as  follows:  "  It  is  my  will 
that  my  wife,  Margaret,  shall  retain  and  keep  in  her  possession 
all  that  I  may  be  possessed  of  at  my  death,  during-  her  natural 
life."  It  appeared  in  evidence  that  the  testator  had  lived  for  many 
years,  and  at  the  date  of  his  will,  and  at  the  time  of  his  death, 
on  a  certain  plantation.  The  will  was  made  in  1815.  In  1811, 
upon  tlic  marriage  of  the  defendant,  his  son.  he  had  permitted 
him  to  occupy  a  small  portion  of  the  plantation,  with  an  under- 
standing that  his  son  was  to  remove  as  soon  as  he  built  a  house 
on  his  own  land.  In  1813  the  testator  insisted  his  soh  should 
remove,  which  he  refused  to  do  until  his  house  should  be  com- 
pleted,  which  would  he  in  1814  The  testator,  and  not  the  de-  • 
Pendant,  always  gave  in  the  land  for  taxation,  and  paid  thetaxes. 
H:hh  thai  under  the  words  of  the  devise  the  land  passed,  and 
that  from  other  clauses  of  the  will,  and  the  parol  testimony,  it 
was  clear;  the  testator  intended  to  devise  the  pari  occupied  by 
his  son,  which  occupation  was  in  fact  only  the  possession  of  the 
tefetator.  And  held  further,  that  parol  testimony  was  admissible 
to  explain  an  obvious  ambiguity  of  expression,  as  to  the  descrip- 
tion of  the  subject  of  the  devise,  as,  for  instance,  to  show  the  si- 
tuation or  occupation  of  the  land  at  any  given  time,  or  whether 
parcel  or  not  pa  devised.  Bolide  v.  BoUck,  1 
Ired.,  244. 

21.  A  devise  of  •■all  my  property  of  any  nature  or  kind  what- 
soever, whirl i  1 1 Is.  | apers  and  moveables  will  show,"  can.  by  no 

intendment  or  construction,  be  taken  to  indicate  an  intention  in 

itator  to  devise  the  land,   which  belonged  to  his  wife. — 
Mitchell  v.  Mitchell,  1  lred..  257. 

22.  A  testator  'i;  i  ised  one  tract  of  land  in  fee  to  his  daughter 

E,  and  another  to  his  daughter  F,  and  added,  in"  a  subsequent 
clause  as  follows:  "I  further  will  that  my  daughter  E  shall  be 
entitled  to  all  the  wood  of  every  di  to  be  taken  off,  as 
suits  her  convenience,  of  that  tract  of  300  acres  of  laud,  be- 
queathed to  ]•'.  most  convenient  and  adjacenl  to  her  plantation." 
&c,  lying  west  and  south  of  certain  other  lands,  it  was  hid, 
first,  thai  E  took  all  that  portion  of  the  vegetable  kingdom, 
growing  on  the  land,  of  a  woody  or  arborescent  nature,  with 
liberty  of  ingress  and  egress  to  take  it  away:  secondly,  that  she 
took  it  in  fee  and  could,  therefore,  com  ey  it  in  fee;  thirdly,  that 
she, did  not  take  all  the  woed   growing  on   the  land  devised  to 

F,  bul  only  such  as  was  convenient,  and  was  on  that  portion  of 
F's  tract,  thai  lay  south  and  west  of  the  designated  tracts. 
Gain, i  v.  Murray,  1  lred.,  517. 

23.  The  act  of  1844,  ch.  83,  making  devises  operate  upon 
such  real  or  personal  estate  as  the  testator  may  own  at  the  time 
of  death,  does   not  apply  to  wills   made   before   that  act,   and 


35(5  DEVISE.— II. 

therefore  such  wills  do  not  include  after  purchased  lands.  JJatilc 
v.  Speight,  S>  [red.,  288. 

24  A  testator  devised  as  follows:  "1  give  to  the  lawful  heirs 
of  my  son  B  deceased  the  plantation  whereon  I  now  live;  I  give 
to  mj  son  C  and  D,  and  their  children,  the  residue  of  my  estate. 
both  real  personal,"  &  c. ;  it  was  held,  that  a  tract  of  land,  which  the 
v  had  bought  adjoining  that  <>n  which  lie  had  previously 
lived,  passed  under  the  devi  "of  i1  i  plantation  on  which  he 
then  lived,"  it  appearing  that  he  had  cultivated  the  two  as  one 
tarm  for  many  years.     Stowe  v.  Davis,  1"  [red.,  431. 

25.  li  is  nut  competent  in  tie'  construction  of  a.  will,  to  prove 
by  witnesses,  that  tin.;  testator  meant  a  clause  in  his  will  to  be 
different  from  what  it  was  written,  or  afterwards  declared  that 
the  clause  as  written,  was  different  from  th  ■  purport  of  it  on  its 
lace;  though  evidence  of  parcel  or  not  parcel  of  the  thing  de* 
vised,  or  any  .'tier  thai  serves  to  lit  a  thing  to  the  descriptions 
is  admissible.     Ibid. 

26.  Where  a  lather,  in  consideration  of  live  shillings  and  of  his 
love  and  affection  for  his  daughter,  conveyed  land  by  deed  to 
her  husband,  and  the  husband,  by  his  will,  devised  In  Ins  wife 
"all  the  property  to 'which  he  became  entitled  by  his  marriage 
with  her,'  in  lien  of  her  dower,  and  there  was  no  express  dispo- 
sition of  the  land  in  question  in  any  other  part  of  the  will,  it 
was  held  that  the  land  was  embraced  in  the  devise  to  the  wile. 
Drake  v.  Ufarritt,  2  denes,  368. 

27.  Where   a   testator,   owning  a   tract   of  land  with   known 

metes  and  hounds,  showed   by  the  whole  sco] f  his  will  that 

In-  intended  to  provide  a  home  for  his  wile  and  one  daughter,  at 
one  end  of  the'  tract,  and  for  his  children  as  a  class  at  the  other 
end,  but  called  for  no  particulars  boundary  except  a  dividing 
line  made  up  of  several  lines  which  together  ran  nearly,  butnol 
quite  through  i     aal  tract,  it  was  held  that,  to  ascertain  the 

land  oi  I  he  w  ife  end   daughl  a-,  the  outi  r  boundaries  of  the  old 

i  itended  lor  tie  m  were  to  be  followed,  (though 
not  described  in  the  will,)  from  the  place  where  the  dividing 
line  intersected  with  one  of  them.  pie,  6  Jones, 

533. 

28.  Vi  here  a  man  had  signed  and  seal  if  gift  which 
he  per  delivered,  and  then  made  a  will  as  follows:  "  I  give  to 
my  son  S,  in  addition  to  what  1  hail  given  him  by  deed  ol  gift"? 

i    notes.  &c,  it  was  held,  thai    there  was  not  a  sufl 
reference  to  the  deed  above  mentioned  to  incorporate  it  into  the 
will,  and  so  pass  the  land  by  devise;  ami  it  was  in-Ill  further,  that 
the  ambiguity   was  a  patent  one  which   could  not  be  aided   by 
paml  proof.     Bailey  v.  Bailey,  7  Jones,  44. 

29.  Where  a  testator,  owning  two  adjacent  town  lots,  settled 
a  woman  on  one  on  which  he  built  a  dwelling  house,  and  put  an 
outdiouse  on  the  other,  and  permitted   her  to  have  a  garden 


DEVISE.— II.-III.  357 

which  was  partly  on  each  lot,  the  whole  being  enclosed  by  one 
fence,  devised  to  her  "the  lot  of  ground  and  the  house  thereon, 
on  which  she  now  lives;"  it  was  held  that  the  whole  parcel  in 
her  possession,  embracing  both  lots,  passed  by  the  devise.  Jones 
v.  Norfla  t,  7  Jones,  473. 

30.  A  testator  gave  to  his  wife  a  tract  of  land  for  her  life,  and 
after  disposing  of  several  other  articles  of  property  and  sums  of 
mom  y,  -aid.  "All  my  property  that  is  not  named,  both  real  and 
personal,  is  to  be  sold,  and  after  paying  all  my  .just  debts,  to  be 
equally  divided  between  my  lawful  heirs,  in  such  a  way  as  to 
mala.'  I :  ieM,  that  the  reversion  in  the  land. 

d  to  the  wife  for  life,   fell  into  the  residue  and  was  to  be 
sold  for  an  equal  division.     Clinev.  Latimore,  1  Winst.  207. 

mtion  to  dispose  by  his 
will  of  all  his  property,  and   uses  general  words  sufficient  for 
state  in  reversion  will  pass.     Page  v.  Atkins,  1 
Winst,  273. 

32.   A   testatoi  I    of  land  to  his  wife  for  life,  and 

.  added  the 
followii-  is  that  all  the  property,  that  I  have 

not  willed  away,  shall  !  .  and  equally  di- 

vided between  mj  a.'  &c. ;   it   was  held,  that  the  re- 

version in  the  land  after  the  life  estate  given  to  the  wife  p 
by  the  residuary  clause.     Ibid. 

Si     (Evidence — Parol  evidence,  when  admissible,  47.) 

III.       CONSTRUCTION,    AS    TO    WHAT    INTEREST    IT    PASSES. 

1.  Devise  "to  J).  J.,  his  heirs  male,  and  assigns  forever,and 
for  want  of  such,  to  the  male  heirs  of  S.  J.,"  &c.  D.  J.,  had  daugh- 
ters at  the  date  of  the  will,  but  never  hada  son;  held,  that  D.  J., 
took  an  estate  tail  male  which,  by  act  of  1784,  was  converted 
into  a  fee  simple,  which  on  his  death  descended  on  his  heirs  ge- 
nerally.    Jeffries  v.  Hunt,  2  Hay.,  130,  (294.) 

2.  Devise  to  two  sous,  charged  with  tin.-  education  of  their  two 
younger  brothers,  will  give  a  for.  especially  where  an  estate  for 
life  w  is  expressly  given  to  the  widow  in  another  part  of  the  will. 
Evansv.  James,  2  Hay.,  152,  (330.)  (Devisesare  now  to  be  con- 
strued in  fee  unless  otherwise  expressed.  Rev.  Code,  eh.  119, 
see.  26. ) 

3.  A  devise  to  A  in  foe,  ami  if  he  die  without  issue  lawfully 
begotten,  then  to  I',;  the  devise-  to  lj  is  too  remote,  and,  therefore, 
void.     Suttonv.  Wood,  Conf.  hep..  202,  (312.) 

4.  If  there  be  a  devise  of  lands  to  A,  for  life,  and  after  his 
deatli  to  his  son  John  and  his  heirs,  and  if  no  heir,  then  over, 
the  limitation  is  too  remote  and  void.  Bryant  v.  Deberry,  2 
Hay.,  356,  (.')4li.)  (For  such  limitations  now,  see  Rev.  Code,  ch. 
43,  see.  3.) 


358  DEVISE.— III. 

5.  Where  a  testator  devised  as  follows  :  "  I  give  to  the  children 
of  G.  W.  L.,  provided  he  has  any,  if  not,  to  the  heirs  of  my  sister 
S.,  the  land,  &c,"  and  it  did  not  appear  from  the  will  that  the 
testator  knew  of  his  sister  S.  being  alive,  it  was  held  that  the 
word  "heirs"  must  be  taken  in  its  legal  acceptation  and  will  not 
operate  as  a  descriptio  personarv/m.  Stith  v.  Barnes,  1  Car.  L.  11. 
484,  (96.) 

6.  A  devise  of  land  "  to  A  and  the  heirs  male  of  his  body  law- 
fully issuing,  and  if  A  dies  without  leaving  lawful  issue  as  afore- 
said, I  give  the  lands  to  the  eldest  son  of  B,"  is  a  good  executory 
devise  to  B's  oldest  son.  Jones  v.  Spaight,  1  Car.  L.  R.. 
544,  (157.) 

7.  A  devised  "to  his  son  B  three  hundred  and  fifty  acres  of 
land."  By  another  clause,  he  devised  thus:  "I  give  and  bequeath 
to  my  son  B  and  my  four  daughters  all  the  rest  of  my  estate^ 
consisting  of  various  articles  ton  tedious  to  mention.  This  was 
before  the  act  of  17-84,  and  the  first  clause  gave  B  only  a  life 
estate;  and  it  was  held  that  the  reversion  did  not  pass  under  the 
residuary  clause,  hut  descended  to  the  heir  at  law,  although 
there  was  a  clause  in  the  will  giving  him  twelve  shillings.  Har- 
ris v.  Mills,  1  Car.  L.  R.,  535,  (149.)  (Since  1784  such  a  devise 
to.  B  would  give  him  the  fee.     See   Rev.   Code,  ch.   119,  sec: 2& 

8.  A  devises  to  his  grandson  B  a  tract  of  land,  "and  in  ease  B 
died  before  he  arrived  at  lawful  age,  or  leaving  no  issue,  then  to 
his  grandson  C;"  held  that,  upon  B's  arrival  at  lull  age,  the  estate 
became  absolute  in  him,  though  he  afterwards  died  without  issue. 
Dickerson  v.  Jordan,  1  Murph.  380., 

9.  Devise  of  lands  by  a  father  "to  be  divided  between  his 
daughters,  B  and  ( '.  and  if  either  of  them  died  before  they  came 
(if  age  <>r  married,  the  share  of  the  one  so  dying  to  vest  in 
and  belong  to  the  other."  B  marriedand  died  before  she  became 
of  age;  held  that  the  land  vested  absolutely  in  B,  upon  her  mar- 
riage, and  upon  her  death  descended  to  her  heirs  at  law.  Lind- 
say v.  Bin-foot,  1  Murph.,  494. 

10.  A  mother  devised  to  her  son  A  one  part  of  a  tract  of  land, 
to  her  son  B  the  residue,  and  directed  that  "if  either  of  them 
died,  leaving  no  heir  lawfully  begotton  of  his  body,  the  living 
should  be  the  lawful  heir  of  all  the  land;"  held,  upon  A's  dying 
without  issue,  that  B  took  the  whole  land,  as  the  contingency  of 
the  one  dying  leaving  no  lawful  heir  of  his  body  was  tied  up  to 
the  lifetime  of  the  other.     Pendleton  v.   Pendleton,  -'  Murph.  82. 

11.  A  father  devised  lands  "to  his  daughter  A  for  life,  and  at 
her  decease,  to  descend  to  her  first  male  child,  but  if  she  should 
die  without  such  male  heir  of  her  body,  then  to  her  present 
daughter  M,  to  her  and  her  heirs  forever."  A,  had  several  male 
children  after  the  death  of  the  devisor,  but  the  eldest  died  in 
her  life  time.    JJeld,  that  the  land  vested  in  him,  and  defeated 


DEVISE.— III.  359 

the  limitation  to  A's  daughter  M.      }Vooten  v.  Shdton,  2  Murph., 
188. 

12.  Where  one  devised  lands  to  his  "daughter  A  B,  to  her 
and  her  husband  during  each  of  their  lives,  and  no  longer  if 
dying  without  any  lawful  heirs  begotten  of  their  bodies,  and  if 
any  lawful  heir,  to  that  and  its  heirs  forever;  otherwise  tore- 
turn  to  my  heirs  at  law.  and  their  heirs  forever:"  it  was  held  that 
the  limitation  came  within  the  rule  in  SheUy's  case,  and  that 
upon  the  death  of  the  husband,  the  land  survived  to  the  wife  in 
fee.      Williams  v.  Holly,  2  Car.  L.  I!..  286,  (266.) 

13.  Where  one  devised  lands  ''unto  ]'>.  B.,  to  him  and  his 
heirs  el' Ins  body  lawfully  begotten,  and  for  want  of  such,  to  the 
heirs  of  M.  T.  l'> .,"  and  in  other  parts  of  his  will  noticed  that 
M.  T.  1!.  was  then  living,  but  she  had  no  children  then,  or  after- 
wards, it  was  lull],  that  the  limitation  to  the  heirs  of  M.  T.  B. 
was  contingent,  dependent  upon  the  estate  in  B.  T>.,  and  that, 
upon  his  dying  without  issue  in  the  life  time  of  M.  T.  IS,  the 
remainder  never  took  effect.  Chesson  v.  Smith,  2  Car.  L.  h'..  392, 
(274.) 

11.  \\  here  one  devised  to  each  oi  his  three  daughters  a  tract 
of  land,  providing  that  if1  either  of  them  should  die  before  mar- 
riage, the  lands  of  each  should  go  to  the  survivors,  and  in  case 
all  should  die  before  marriage,  their  lands  should  goto  P>  and  ('. 
U  was  held,  thai  the  limitation  in  this  clause  was  not  affected 
by  the  limitation  in  the  residuary  clause,  in  which  all  his  estate. 
real  and  personal,  was  given  to  his  three  daughters  to  be  equally 
divide  1  between  them,  when  the  two  oldest  arrive  at  the  age  of 
nor  marry,  and  that  if  either  of  them  should  die  before  they 
arrive  at  eighteen  or  marry,  then  the  share  of  the  one  so  dying 
should  go  to  t  lie  survivors:  bul  if  they  should  all  die  before  they 
arrive  at  eighteen  years,  or  mayy  and  have  issue,  then  the  said 
personal  estate,  and  all  other  property  which  thej  >'  ere  entitled 
to  by  hi^  will,  should  go  to  l'>.  1>.  R.  and  A.  Arrington  v.  Alston. 
2  Murph.,  321,  S.  C.  \.  C.  Term  R.,  310,  (727.) 

15.  Where  a  devisor  directed  that,  upon  the  failure  of  the  issue 
of-histwo  sons,  part  of  the  lands  devised  to  them  should  be 
rented  out  for  the  benefit  of  the  daughter  during  her  life,  and 
after  her  death  to  her  children:  and  another  part  of  the  same 
land  to  pass  at  the  same  time  to  J.  S.;  if  the  limitation  to  J.  S. 
be  good,  yet  he  cannot  recover  the  lands  without  showing  that 
the  issue  of  the  sons  had  failed  in  the  life  time  of  the  daughter. 
Stevenson  v.  Juror/,::  3  Murph.,  558. 

16.  Devise  to  A,  and  if  he  die  without  any  lawfully  begotten 
heir  of  hisbody,then  to  his  brothers  and  sisters,  gave  an  estate 
tail,  which,  by  the  act  of  17*4.  was  changed  into  a  fee.  and  the 
ulterior  limitation  was  void.  Sanders  v.  Hyatt,  1  Hawks,  247. 
S.  P.,  Beasley  v.  Whitehurst,  i  Hawks,  437. 

17.  Where  a   devisor   gave  a  portion  of  his  land  to   his  wile 


360  DEVISE.— III. 

for  life,  and  then  to  the  child  of  which  she  was  then  pregnant 
if  a  male,  and  in  the  event  of  the  death  of  his  son  W.,  to  whom 
he  had  given  other  lands,  or  the  death  of  the  child,  with  which 
his  wife  was  then  pregnant,  if  a  male,  the  survivor  skoidd  have 
the  whole,  if  either  died  without  issue;  and  it  both  died  without 
issue,  then  J.  S.,  a  nephew,  should  have  portion  of  the  land: 
the  child  of  which  the  wile  was  pregnanl  was  a  female;  and  it, 
was  held  thai  the  nephew  took  nothing,  for  that  the  gilt  to  the 
nephew  depended  upon  the  birth  and  death  without  issue  of  a 
male,  which,  under  the  circumstances,  was  to  be  construed  a 
condition  precedent,  and  that  event  not  having  happened  the 
estate  designed  for  the  nephew  could  not  take  effect.  St 
son  v.  Jacocks,  1  Hawks,  285. 

18.  Devise  as  follows:  "  It  is  my  will  that  all  the  remaining 
part  of  my  estate,  real  and  personal,  be  equally  divided  among 
the  heirs  of  my  brother,  -I.  I'..  the  heirs   of  my  sister,  X.  S..  the 

in;;,  sister,  S.  \Y.,  deceased,  and  nephew,  L.  W.  The 
brother  J.  F.  was  noticed  in  the  will  as  being  alive,  and  the 
nephew  L.  W.  was  one  of  the  children  of  the  deceasi  d  sister,  S. 
W.  Held  that  the  words  "heirs"  meant  children,  and  that  the 
lands  must  he  divided  per  mqnia  among  them  all:  ami  that  the 
nephew,  L.  W.,  should  Etavean  additional  share.  Stowe  v.  Ward, 
8  Hawks,  604.  (Overruled  by  S.  C,  1  Dev.  67,  but  reaffirmed  in 
Wardr.  Stowe,  2  Dev.,  Eq.  509.) 

19.  Where  one  devised  as  much  land  as  his  wife  could  culti- 
vate, during  her  life  or  widowhood,  and  that  his  executors  should 
rent  out  the  residue  of  his  cleared  land,  until  his  children  should 
Some  of  age  to  take  it  into  possession ;  and  the  life  estate  ex- 
pired during  the  nonage  of  some  of  the  children,  i  was  7,eld 
that  those  of  full  age  had  a  right  to  an  immediate  partition  of 
the  whole  ot  tin.'  lands  devised.     Hoyle  v.  Hu&on,  1  Dev.,  348. 

20.  The  words  "alter  all  my  just  debts  are  paid,"  annexed  to 
a  devise  oi  lamls.  do  no1  confer  upon  the  executor  a  power  of 
sale.  The  act  of  1789  avoids,  as  againsl  creditors,  all  devises  for 
the  payment  of  debts,  and  renders  words  of  the  above  kind  nug- 
atory. Dunn  v.  Keeling,  2  Dev.,  283.  (As  to  the  manner  in 
which  the  debts  of  a  decedent  are  to  he  paid  out  of  his  land, 
see   Rev.   ('ode,  ch.  -Hi.  sec.  44.  and  following.) 

21.  Where  a  devisor  directed  that  his  widow  should  cultivate 
as  much  of  hisland  during  her  life  or  widowhood  as  she  pleased, 
and  the  "balance"  was  to  be  rented  out  by  his  executors,  Mid 
that  the  power  of  leasing  extended  to  the  whole  estate,  upon 
the  determination  of  the  widow's  estate  for  life.  Hoyle  v.  Stowe, 
2  Dev.,  318. 

22.  Where  a  father,  by  will,  gave  one  child  a  specific  legacy, 
and  added,  "  with  which  he  must  be  contented,  without  re- 
ceiving any  further  dividend  from  my  estate,"  and  then  devised 


DEVISE.— III.  361 

•  is  land  "to  my  children,"  it  was  held  that  the  words  "my  chil- 
dren," were  to  be  construed  "the  rest  of  my  children."     Ibid. 

23.  A  devise  to  two,  "but  if  either  of  them  at  their  death 
should  leave  no  issue,  that  the  whole  should  go  to  the  survivor," 
is  a  good  executory  devise — and  the  devisees  take  as  tenants  in 
commonm  fee,  with  a  contingent  limitation  toeach  of  them  of  an 
estate  in  severalty.     Southerland  v.  Cox,  •">  Dev.,  394. 

24.  One,  by  his  will,  devised  certain  Lands  and  slaves  to  his 
son  B;  he  then  devised  other  lands  and  property  to  be  sol  ;  ona 
Long  credit,  ami  all  tin'  residue  of  his  estate  to  be  sold  on  a 
shorter  credit,  "  lands  rented  and  negroi  cep<  B's  lot  of 
land  and  negroes,"  of  which  he  wished  him  to  have  the  possession 
at  his  ile. tih.  He  then  directed  the  mom  from  the; 
sale,  rent,  hire.  &c,  to  be  a]  plied  to  the  settlemenl  of  his  estate; 

held,  that,  o  i  the  construction  of  the  whole  will,  B's  share 
was  n  I  from  the  ;  I 

the  fund  appropriat  id  for  that  purpose  by  the  testator.      Croorr\ 
v.  Groom,  i  Dev.  250. 

25.  lands  "  to  A  for  life,  and  after  her  death  to  be 

i   le  heirs  of  her  body,  and 
■s  then   over,"  &c,   g  i  \  es  A  an   esl 
which,  i"  the  act  of  1784,  is  converted  into  a  lei- simple'.      Ross 
v.  Toms,  i  Dev..  376. 

2ii.   When  there  is  a  particular  intent,  and  also  a  general  par- 
i nit  intent  apparent  in  the  same  will,  and  they  clash,  the 

ai  ral  intent  must  prevail.     Ibid. 

21.  In  a  will,  the  words  "I  leave  all  my  land,  not  given 
away,  to  be  sold,  and  after  my  debts  are  paid,  the  residue  of  my 
tween  my  wife,  son  and  daughter,"  to- 
gether with  the  following  in  a  codi'cil,  ''I  nominate  M.  S.  to  be 
my  executor  to  this  my  last  will,  to  make  sale  of  my  land  before 
mentioned,  and  to  execute  this  instrument  of  writing  in  every 
respect,"  do  not  vest  an  estate  in  the  executor,  but  only  confer 
on  him  a  power  of  sale.  Neither  are  they  a  devise  of  the  lands 
to  the  wile-  and  children.  Ferebee  v.  Proctor,  2  Dev.  and  Eat., 
439. 

28.  A  devise  to  an  executor,  for  the  purpose  of  sale,  is  not  to 
be  presumed  without  a  necessary  implication,  because  giving 
ldm  simply  a  power  of  sale  effects  the  same  results,  and  is  more 
beneficial  to  the  heirs.     Ibid. 

•2'J.  Where  a  testator  devised  a  certain  tract  of  land  to  his 
eldest  sen.  and  the  residue  of  his  hinds  to  his  widow  and  other 
suns,  and  bequeathed  his  slave  to  his  widow,  all  his  sons  and  his 
daughter,  and  in  a  subsequent  clause  directed  as  follows:  "At  the 
death  of  my  said  wife  all  the  land  and  negroes,  that  may  fall  to 
her,  shall  return  to  J.  Z.  "(one  of  his  sons,)  and  in  ease  of  the 
death  of  either  of  my  aforenamed  children,  without  a  lawful 
heir,  begotton  of  his  or  her  body,  that  then  las  or  her  part  shall 


362  DEVISE.— HE 

be  equally  divided  among  the  survivors,"  it  was  held  that  upon 
the  death  of  J.  Z,,  without  children,  subsequent  to  the  death  of 
the  widow,  all  the  lands,  which  he  acquired  under  his  father's 
will,  both  thai  part  which  was  given  to  him  immediately,  and 
that  part  which  was  limited  to  him  after  the  death  of  his  mother, 
went  over  to  the  surviving  brothers  and  sister,  and  that  the  lim- 
itation was  not  too  remote.  Zollicoffer  v.  ZoUicqffer,  4  Dev.  and 
Bat.,  438. 

30.  Since  the  act  of  1784,  for  converting  estates  tail  into  estates 
in  fee  simple,  executory  limitations  of  land  and  chattels  are  to 
lie  construed  alike,  upon  the  presumed  intention  of  the  testator, 
that,  in  each  ease,  the  estate  should  go  over  on  the  same  event. 
J  hi,  I.      (See  Rev.  Code,  ch.  43,  see.  1.) 

31.  Where  a  testator,  who  had  three  tracts  of  land  adjacent  to 
each  other,  over  parts  of  ad  which  his  plantation  extended,  and 
had  three  sons,  11.,  J.  and  W.,  of  whom  11.  and  J.  were  married,  and 
resided  upon  the  testator's  lands,  devised  to  his  wife  "full  posses- 
sion of  all  the  plantation  and  stock,  &c,  durifTg  hernatural  life, 
or  widowhood,  except  the  particulars  that  may  In  reafter  he  men- 
tioned," and  then  devised  to  his  sen  R.  "all  the  200  acre  tract  of 
land  that  he  now  lives  on,  and  so  much  of  the  old  track  as  lies 
on  Ih-  same  side  of  Homony  creek,  &c,"  and  in  a  subsequent 
part  of  his  will  devised  as  follows:  "  I  will  to  my  son  J.  all  the 
remaining  part  of  the  old  tract  of  land,  exclusive  of  the  part 
above  mentioned  to  my  son  PL,  and  bequeath  unto  my  son  .1  my 
still,  and  all  her  furniture,  at  the  death  or  marriage  of  my  wife. 
Also  my  wagon  and  hind  gearing,  at  her  death."  It  wax  held 
that  the  testator's  son  J.  took  an  immediate  estate  in  fee  in  the 
lands  devised  to  him,  and  not  an  estate  in  remainder  after  the 
death  or  marriage  of  the  testator's  widow.  Jones  v.  P'osten,  1 
[red.,  166. 

32.  In  expounding  a  will,  the  grammatical  construction  must 
prevail,  when  an  intent  to  the  contrary  does  not  plainly  appear. 

Ibid. 

33.  In  a  devise  before  the  act  of  1827,  the  words  "if  my  son 
should  diewithout  lawful  issue,"  unexplained,  impelled  in  a  legal 
sense  the  failure  of  issue  at  any  indefinite  time,  whenever  it 
might  happen;  and  a  remainder  limited  upon  such  a  contingency 
was  void.  Brown  v.  Brown,  3  Ired.,  134.  (See  Revised  Code, 
ch.  43,  sec.  3.) 

34.  A  person  having  several  children,  devised  to  his  two  sons, 
W.  W.  and  II.  \V.,a  tract  of  land,  to  them  and  their  heirs  fen  ,  er 
In  a  subsequent  clause,  after  many  previous  devises,  he  devised 
as  follows:  "I  will  that  if  any  of  my  children  die  without  issue, 
leaving  a  wife  or  husband,  it  is  mv  will  such  wife  er  husband 
shall  lie  entitled  to  one-half  of  the  property,  the  other  half  to  be 
equally  divided  between  my  other  children  or  their  heirs;"  it  was 
held  tliat  the  contingent  limitations  over  were  good,  and,  there- 


DEVISE.— III.  363 

fore,  that  W.  W.  and  R.  W.  could  not  convey  an  absolute  and 
unconditional  estate  in  fee  simple,  free  from  these  limitations. 
Garland  v.   Watt,  5  Ired.  287. 

35.  A  testator  djevised  to  his  two  grandchildren,  W.  andC.a 

certain  tract  of  land  called  Whitehall,  to  be  equally  divided  be- 
tween them,  provided  that  if  \V.  -'within  a  reasonable  time, 
would  transfer,  by  deed  to  his  sister  C,  all  the  titli  and  estate 
his  father  should  confer  on  him,  or  may  accrue  to  him  in  that 
tract  of  land  now  owned  by  his  father,  called  Bell's  Chapel,  then 
my  will  is.  that  the  said  W.  have  and  hold  the  whole  of  said  tract 
called  Whitehall."  Afterwards  the  father  of  the  said  W.  died. 
seized  of  the  tract  called  Bell's  Chapel,  but  by  his  will  devised 
the  whole  of  it  to  C.  Although  he  had  no  title  to  th  Bell 
( !hapel  land.  W.  tendered  a  deed  to  his  sister  C  for  all  his  right 
and  interest  in  the  same,  and  insisted  that  he  thus  !  came  en* 
titled,  under  his  grandfather's  will,  to  the  whole  of  the  White- 
hall tract;  it  was  held,  that  as  W.  had  no  rigid  or  it 
in  the  Bel]  Chapel  land,  Ids  d  operative,  and  tin- event. 

on  which  the  title  to  one-half  of  the'  Whitehall  tract  was  to  be 
:  1  outof  C,  and  vested  in  W..  had  not  occurred,  and  of 

course  he  had  no  right  to  it.     BeUv.  Doris.  4  Ired..  521. 

36.  When  tin-  event,  which  actually  happens,  comprehends 
that  for  which  the  gift  in  the  will  provided,  as  the  greater  in- 
cludes the  less,  so  that  the  one  of  necessity  involved  the  other 
in  substance  and  effect,  then  the  court  will  adjudge  the  estate 
dependent  upon  the  condition  to  have  vested.  But  where  there 
is  no  such  necessary  consequence,  the  court  must  say.  that  the 
event,  on  the  happening  of  which,  by  the  will,  the  estate  is  to  go 
over,  has  not  occurred.     Ibid. 

.">7.  A  devisor,  by  his  will  executed  before  the  act  of  1827. 
gave  lands  to  Ins  two  daughters,  "and  if  they  should  die  with- 
out an  heir,  then  to  his  wife;"  itwasheld,  upon  the  daughters  dy- 
ing without  issue,  that  the  limitation  overwastoo  remote,  and 
therefore  void      Brantleyv.   Wltitaker,  5  Ired.,  225. 

38.  "Where  there  is  an  express  estate  to  one  for  life,  with  a 
power  to  appoint  the  estate  among  certain  persons,  the  first 
taker  gets  but  an  estate  for  life.     Alexander  v.    t 

Ired..  430 

39.  Where  the  estate  is  not  given  expressly  for  life,  but  indefi- 
nitely to  a  devisee,  with  power  to  appoint  at  his  discretion  or 
as  he  pleases,  among-  certain  named  person  or  to  a  class,  the 
better  opinion  in  England  is,  that  the  devise  should  be  construed 
to  be  a  devise  for  lift-,  with  a  power  to  appoint  the  inheritance, 
unless  the  words  of  the  will  clearly  negative  such  a  construc- 
tion. And  the  law  is  the  same  in  this  State,  notwithstanding 
our  act  of  1784,  which  declares  that  devises  of  land  are  to  bo 
construed  in  fee,  unless  by  the  express  words  of  the  will,  or  by 
plain  intendment,  it  may  be  held  to  be  a  less  estate;  for  tha 


364  DEVISE.— III. 

only  purpose  of  that  provision  was  to  establish  a  rule  between 
the  heir  and  the  devisee,  in  respect  to  the  beneficial  interest  of 
the  latter.     Ibid.     (See  Rev.  Code,  ch.  119,  sec.  26.) 

40.  Where  one  devised  as  follows:  "I  give  to  my  wife  a  life 
estate  in  the  land  and  plantation  whereon  I  live,"  &c.  After  other 
provisions  he  adds;  "to  my  son  Aaron  I  give  a  horse,  &c.,  my 
land  and  plantation  that  J  have  before  mentioned  in  (his  will 
with  all  iiie  farming  utensils,  &c.;  and  ii  is  my  will  that  he 
tak  care  of  his  mother  and  smoothe  the  pillow  of  her  age,"  it 
was  held,  that  the  devise  oi  the  land  to  the  sou,  in  the  subsequent 
] tart  of  the  will,  must  be  construed  as  subject  In  the.  devise  of 
the  life  estate-  to  the  wife  in  the  first  part,  and  not  as  revoking 
oi- controlling  it.     Crissman  v.  Crissman,  5  [red.,  198. 

41.  A  testator  di  i  Hows:  "I  give  to  i  .-  d  on  J. 
S.,  son  of  S.  S.,  the  tract  of  land  I  now  live  on,  with  the  reserve 
and  privilege  of  my  son  S.  S..  the  father  of  the  said  ,!.  S., 

the  full  privilege  of  the  I  ad,  and  all  the-  profits  aiising 
therefrom  during  his  natural  lite.     I  fin  '■  all  my  lands, 

that  1  am  seized  and  possessed  of  at  this  time,  or  the  profits 
arising  therefrom,  to  my  wife  during  her  life  or  widowhood,  then 
for  ii  to  fall  back  to  bhe  sai  I  heir  as  above  mentioned:"  it  was 
tat,  even  if  J.  S.,  were  the  heir  intended  in  the  second 
clause  of  the  will,  yel  lie  could  only  tab  'yet   to 

the  reservation  in  the  first  clause  of  a  life  estate  to  his  father; 
and  ol'  couse,  he  could  not  ti    recover  tin.'  land 

in  th"  life  rime  of  Ins  father  ..  Ragsdale,  7  [red.,  l'J4. 

42.  .V  person  devi  d  in  17'Sti  a  tract  of  lain!  to  his  son,  ami 
added,  "an  1  my  di  sire  is.  that  if  my  son  die  without  heir  law- 
fully begotten  of  his  body,  tor  it  U  ■  to  he 
divided  between  his  own  sisters,"  and  ii  was  in!,!  that  the  limita- 
tion over  was  too  remote,  and  that  estates  tail  having  b<  en  con- 
verted by  the  act  of  1784 into  estates  in  fee  simple,  the  son  took 
an  abolute  estate  in  the  land  devised.  Moliowell  v.  Kornegay,  7 
Ired.,  261.     (Such  a  limitation  is  not  now  too  remote.     See  Rev. 

(  'ode,  ch.  43,  sec.  3.) 

43.  A  testator  in  1817  devised  as  follows.  "1  give  to  my  son, 
J.,  the  trad  of  land  he  now  lives  on,  but  if  he  should  die  without 
an  heir,  the  land  then  to  be  divided  between  my  sons  A.  and  W., 
ii  was  held  that  the  limitation  over  was  too  remote,  the  devise  to 
J.,  creatine'  an  estate  tail,  which  by  the  act  was  converted  into 
a  fee  simple.      Weatherly  v.  Armfield,  8  Ired.,  2'j.     (But  see  Rev. 

Code.  ch.  43,  sec.  3.) 

44  A  testator  in  17hl  devised  as  follows,  "I  lend  unto  B.  W. 
all  the  lands  I  own  in  Conehoe  Island,  &c,  during  his  natural 
life,  and  after  his  death  I  give  the  lands  to  his  heirs  lawfully  be- 
gotten, to  them  and  their  heirs  forever;  and  in  case  he  should 
die  without  lawful  issue  of  his  body,  then  I  lend  the  above  men- 
tioned lands  to  his  brother,  H.  W."  &C-,  and  it  was  held  that  the 


DEVISE.-JII.  3(55 

words  "heirs  lawfully  begotten,"  were  words  of  limitation  and 
not  ol  purchase;  thai  15.  W.,  therefore,  took  an  estate  tail  by 
the  rule  in  Shelby's  case,  which  by  the  act  of  1784  was  convert- 
ed into  a  fee  simple,  and  that  the  remainder  over  was  void ;  and, 
further,  that  the  words  "to  them  and  their  heirs,"  superadded 

words   ■■  his  heirs  lawfully  begotten,"  did  not  affect  this 
construction  of  the  d<  rise.      Folk  v.   Whitley,  8  Ired.,  133. 

A'i.  Where  one  devisi  d  as  follows,  "  for  the  love  and  affection 
which  1  have  for  J.  M.,  and  to  enable  him  to  take  care  of  my 
two  old  negroes.  B  and  R,  who  1  wish  to  remain  where  1  now 
li  d  support  themsi  Ives,  1  give  the  land  whereon  1  now  live 

[.,"  &c,  it  was  held  thai  J.  M.  took  a  valid  legal  estate  in 
the  land,  without    L'egai  alleged  in  favor  of  the 

ders,  9  [red.,  329. 

46.  A  mere  wrong-doer,  who  has  only  a.  color  of  title,  cannot 
any  estate  by  his  will  to  his  di  ..  Bryan,  12 

Ired.,  11 

47.  A  testator  devised  to  his  son  a  tract  of  land  "fi  r  and 
during  his  natural  life,"  and  alter  his  death  "to  the  heirs  of  his 
body,  to  be  equally  divided  between  them,  to  them  and  their 
heirs  forever,"  and  if  he  die  without  heirs  of  his  body,  living  at 
the  time  <•'(  his  death,  then  to  hisdaughti  r;  it  was  held  that  the 
sou  took  only  an  estate  for  life.  Moore  v.  Purler,  12  [red., 
123. 

48.  A  testator  devised  land  to  "P..  daughter  of  1!.,  reserving  to 
B.  the  use  of  the  land  until  1'.  should  become  ten  years  of  ,  ge, 
then  the  rents  to  1.-  applied  to  educating  her,  and  in  case 
without  lawful  heir,  begotten  of  her  body,  then  to  be  sold.  &c!!' 
1'..  the  daughter,  died  at  lour  years  of  age;  'oil  it  was  held  that 
B.,  the  fa  tin  r.  took  an  estate  to  his  own  use  until  the  time  when 
P.  would  have  attained  the  age  i  f  ten  years.  Urol!,,  rs  v.  Brothers, 
Busb.,  265. 

[9.  A  testator  devised  land  to  I...  "provided  the  said  I.,  shall 
pay  to  my  gt  hundred  dollars,  and  E.  died  in  the 

lifetime  !t  was  held  that  the  proviso  did  not 

make  the  devise  to  L.  conditional,  bu1  gavea  legacytoE.,  charged 
upon  the  land;  and  that  by  the  death  <<i'  E.,  in  the  lifetime  of  the 
testator,  the  legacy  lapsed,  aid  I.,  took  clear  of  the  charge. 
Woodsv.  IVa  i     >.,  290. 

50.  Where  a  testator  devised  to  his  daughter  his  real  estate, 
one-third  to  do  with  as  she  pleased,  and  the  other  to  he  vested 
in  trustees  as  a  fund,  '-for  her  benefit  and  her  heirs  forever,"  she 
.<  cen  ing  the  nett  profits  for  and  during  her  natural  life  and  then 
to  such  of  her  children  as  she  may  have  or  leave  surviving  her. 
with  a  declaration  that  he  did  not  make  '-this  provision  to  de- 
prive her  or  her  husband,  if  she  marries,  of  the  free  use  and  enjoy- 
ment of  the  fruits  of  my  labor  and  industry,  but  to  provide,  as 
far  as  I  can,  for  her  and  her  children  against  any  misfortune 


366  DEVISE.— III. 

that  might  happen;"  it  was  held  that  the  daughter  took  an  estate 
in  fee,  with  an  executory  devise  to  her  children,  should  she  marry 
and  have  any.      Winder  v.  Smith,  -  .'ones,  327. 

51.  Where,  in  a  will  made  before  the  act  of  1827,  the  testator 
devised  as  follows:  "If  any  of  my  children  should  die  without 
lawful  issue,  then  their  property  to  return  and  be  equally  divided 
among  all  my  children,"  and  it  appeared  from  other  parts  of  the 
will,  that  dying  without  issue,  as  applied  to  the  testator's 
daughters,  meant  children  living  at  their  respective  deaths,  it  was 
held  that  the  same  construction  must  be  applied  to  the  property 
given  to  his  son,  and,  therefore,  the  limitation  over  of  the  prop- 
erty given  to  him  was  not  too  remote.  Gibson  v.  Gibson,  4 
Jones,  t25. 

fyl.  Where  a  testator  devised  land  to  his  daughter  and  her 
children,  sin-  having  children  at  the  time  of  the  making  of  the  will, 
who  survived  the  testator,  it  was  held,  that  the  daughter  and  her 
children  took  a  joint  estate  in  tee.  Moore  v.  Leach,  5  Jones, 
88. 

53.  A  codieil  should  be  so  construed  as  to  interfere  with  the 
dispi  sitions  ma  le  in  the  will  only  to  the  extent  necessary  to  give 
full  effect  to  the  codicil.  Where,  therefore,  a  testator  gave,  in 
the  body  of  his  will,  a  fee  simple  in  a  tract  of  land  to  his  grand 
son,. and  then  by  a  codicil  directed  the  land  to  he  sold  by  his 
executor,  and  the  proceeds  divided  among  other  persons,  it  was 
held  that  until  a  sale  was  made  by  the  exeeutor,  the  legal  estate 
of  the  tract  of  land  remained  in  the  devisor's  grand  son.  Jen- 
Mns  v.  Maxwell,  7  Jones,  (>12. 

54  A  devise  to  the  testators's  wife  during  her  life,  and  then 
as  follows,  "it  is  my  wish  my  son  W.  should  live  with  his  mother, 
and  after  her  death,  then  &ie  part  of  my  land  a  hove  described  to 
belong  to  my  son  VV.  ami  his  heirs  forever,"  loas  held  not  to  con- 
vey any  estate  in  the  land  to  \\ .  during  his  mother's  life.  Head 
v.'llxt'd,  7  Jones,  620. 

."»"-.  Where  a  person  in  1828  devised  land  and  slaves  to  a  trus- 
tee for  the  use  of  his  daughter  tor  her  life,  remainder  to  the  use 
of  all  Her  children,  it  was  held  that  by  virtue  of  the  statute  of 
uses,  which  was  then  in  force  in  this  State,  tic  legal  estate  for 
life  was  vested  in  the  daughter,  and  the  remainder  was  vested 
in  the  children  then  born,  subject  to  be  divested  in  favor  of  such 
as  might  thereafter  be  born.    Wilder  v.  Ireland,  8  Jones,  85. 

56.  Whether  a  devise  to  a  trustee  for  the  use  of  another  pier- 
son  can  now  he  executed,  since  the  passage  of  the  Revised 
Statutes  and  Revised.  Code,  quaire.  Hid.  (See  Rev.  Stat.,  ch 
\:\,  sec.  l  and  Rev.  Code,  ch.  13,  sec.  6.) 

57.  Where  a  father  gave  by  deed  to  his  daughter,  and  the 
heirs  of  her  body,  a  tract  of  land,  and  provided  that  "if  the  said 
daughter  should  die  and  leave  an  heir  or  heirs  of  her  body,  in 
that  ease  said  heirs,  being  her  children  or  child,  is  to   have  all 


DEVISE.— III.— DISORDERLY  HOUSE.  &c.  367 

the  property  herein  given  to  them  ami  their  heirs  forever,"  it 
was  held,  that  the  children  of  the  daughter  took  as  purchasers, 
the  rule  in  Shelly's  case  not  applying.  Williams  v.  Iknshi,  1 
Winst..  102. 

58.  Whether  the  rule  in  Shelly's  case  would  apply,  where  the 
limitation  isto  A  for  life,  remainder  to  the  heirs  other  body  and 
their  heirs,  quaere.     Ibid. 

59.  A  di  *nse  "to  A.  R,  for  him  and  his  mother  and  th  -  rest 
of  the  children  to  live  on  until  the  youngest  becomes  of  age," 
is  a  gilt  of  the  fee  simple  in  the  land  to  A.  R.  Riley  v.  Buch- 
anan, 1  Winst .  89. 


DISORDERLY    HOUSE. 

See  (Indictment — When  an  indictment  will    lie,  78-88-131,  ) 


DISTILLING. 

1  A  person  who  leases  his  still  house  and  still,  knowing  that 
the  lessee  takes  them  for  the  purpose  of  distilling  spirits  from 
corn,  and  who  'lues  so  distill,  isnot  guilty  ofa  violation  of  theaot 
prohibiting  distillation  of  spirits  from  corn,  if  he  have  no  interest 
in  the  liquor  distilled.     State  v.  Summey,  2  Winst.,  108. 

2.  Liquor  obtained  by  running  the  beer  once  through  thesti'l, 
which    is    called  •  singlinge,    is    "spirituous    liqi  iin    the 

meaning  of  the  act.     Ibid. 


DISTRIBUTION. 

1.  The  mother  shall  have  an  equal  share,  and  that  only,  with 
the  brothersand  sisters  of  her  son,  dying  without  issue,  possessed 
of  personal  property,  whether  that  propertywas  acquired  by  his 
lather  or  otherwise.     Anonymous,  2  Hay.,  62,  (230.) 

2.  Every  person  who  is  an  heir,  by  the  law  of  the  country  is 
entitled  to  the  benefit  of  it,  and  is  not  obliged  to  account  for  the 


?,GS  DISTRIBUTION. 

land  settled  on  him  by  his  parent,  in  a  distribution  of  the  per- 
gonal estate.  Unci*  v.  Duke,  2  Hay.,  224,  (400.)  _  (For- the  law 
of  distribution  and  advancements,  as  it  now  exists,  see  Rev. 
Code,  ch.  32,  rule  2  and  ch.  64,  sees.  1,  2,3  and  4.) 

3.  Advancements  of  personal  property,  made  by  an  intestate,  in 
his  lifetime,  to  his  children,  are  to  be  brought  into  distribution 
for  the  benefit  of  the  widow.  Davis  v.  Duke,  Tay.,  213,  (102.)  S. 
C.  Conf.  Rep.,  361,  (439.) 

4.  If  the  administrator  purchase  at  the  sale  of  the  intestate, 
for  the  widow,  he  shall  dedud  the  amounl  of  her  distributive 
share,  although  she  has  transferred  half  toa  third  person  before 
the  sal,-.     Dafar.  Duke,  2  Hay.,  224,  (400.) 

5.  An  advancement  i — dd  bi  valued  according  to  its  worth 
at  the  time  of  the  advancement.  King  v.  Worsley,  2  Hay.,  366, 
(559.) 

6.  Th>  personal  estate  of  an  intestate,  no  matter  where  situate, 
is  distributable  according  to  the  laws  of  the  country  when-  the 
intestate  was  resident,  or  had  Ids  domicil,  at  the  time  of  his 
death.  Hence,  slaves  in  Virginia,  belonging  toa  citizen  and 
inhabitant  of  lids  State,  must  be  distributed  according  to  the 
laws  of  this  State.  WiUiamson  v.  Smart,  Conf.  Rep.  146,  (268.) 
S.  C,  day.  219,  (108.) 

7.  Petitions  for  distribution  are  in  the  nature  of  equity  pro- 
ceedings, and  must  be  governed  by  the  rules  of  chancery  prac- 
tice; and.  therefore,  if  witnesses  be  summoned  by  either  party, 
they  must  be  paid  by  the  party  summoning  them,  as  their  depo- 
sitions ought  to  have  been  taken.  Ryden  v.  Jones,  3  Hawks, 
24. 

8.  Courts  of  law  afforded  no  remedy  for  a  distributive  share, 
because  their  forms  were  fixed  before  the  right  to  distribution 
was  given.      But  the  right  being  now  given  by  statute,  it  is 

ized  in  courts  of  Law.     Holmes  v.  Hall,  3  Dev.  98. 

'.I.   (lifts  of  personalty    by  a   husband  to  .children,   whether 

those  of  his  present  wife,  or  by  a  former  marriage,  are  to  be 

brought  into  hotchpot,  tea'   the  benefit   of  the  wife,  she   being 

I,  in  this  respect,  upon  the  same  footing  with  children  not 

fully  advanced.     Littleton  v.  Littleton,  1  Dev.  and  Bat.,  327. 

10.  A  provision  by  a  parent  for  a  child  in  any  manner,  or  at 
any  time,  or  however  inadequate,  (except  in  the  case'  of  partial 
intestacy,)  excludes  such  child  from  the  benefit  of  the  act  of 
1808,  providing  for  children  born  after  the  making  of  their 
Father's  will;  yet  \<<  have  that  effect,  the  estate  derived  by  such 
child  must  be  ex  provisione  parentis,  and  not  from  any  other 
source.  Meares  v.  Meares,  4  lred.,  192.  (See  Rev.  Code,  ch. 
119,  sec.  29.) 

11.  The  illegitimate  child  of  a  mother,  who  had  died  before 
her  father,  is  not  entitled  under  the  statute  to  any  distributive 


DISTRIBUTION.  369 

share  in  t,he  estate  of  his  grandfather.      Waggoner  v.  MiUer,  4 
[red-,  480.     (See  Rev.  Code,  ch.  64,  sec.  5.) 

12.  The  value  of  an  advancement  is  to  be  estimated  as  of  the 
time  when  the  advancement  was  made,  and  not  as  of  any  subse- 
quent time.      Lamb  v.  Carroll,  6  Ired.,  4. 

13.  [i  ■         count  and  distribution  of  an 
tate's   i                     word  "distributees"   was  held  (Eri-nx.  C.  J. 
dissent                     proper  to  d  who  are  entitled  under 
our  sta                 i  tributions.    Henry  v.  Henry,  9  Ired.,  278.    (See 
Rev.  Cod 

14.  In  the  distribution  of  an  i  advancement  to  a  hns- 
band    by   his   father-in-law   is   an    advancement  to   his   wife- 

kins,  11  Ired.,  68. 

15.  ! '■■  i  ticelling  of  the  bond  of  a  child,  with  an 
intentiontb  re  yto  prefer  him  in  lite,  is  as  much  an  advancement 
as  so  much  cash.     Ibid. 

16.  In  ord  :r  to  constitute  an  advancement  of  a  slave  by  a  parol 
gift,  there  must  be  an  actual  delivery  and  change  of  pose 

And  while  a  son  continues  to  reside  with  his  father,  the  gift  has 

but  when  I  s  and  takes  the  slave 

with    hi  r  becomes   effectual   and   its  value 

must   !  :-  '    os  v.   Meadows,   1 1 

!rcd..  148. 

17.  A  child  does  not  lose  the  benefit  of  an  advancement  of  a 

lling  it.     Ibi  ' . 

its'   are  und  be   gifts  of  mom 

p  :rsonal  property,  for  the  preferment  and  settling  of  a  child  in 
nd  not  such  of  small  value,  or    such 

ired  for  the  mainteuace  and  education  of  the  child. 

19.  '.  male  mulatto  child  was  found  at  the  door  of  a 
nan,  who  took  charge  of  her  and  retained  possession  for 

more  il  >  no1  to  claim  her  as  a  slave,  as 

■.  and  he   refused  to  deliver  her  to  any 
i,  who  could  not  show  a  good  title  to  her  as  a  slave;  and 
at  his  death  he  left  her  $200;  it   was  !■  Id  that  if  the  girl  was 
I  :1  of  kin  could  not  claim  distribution  oi  her,  nor  of 

but  if  she  was  a  slave,  then  the  next  of  kin  were  en- 
titled to  distribution  both  of  her  and  the  legacy,  if  the  decedent 
had  had  adverse  possession  of  her  for  more  than  than  three 
and  that  to  vest  the  title  of  the  slave  in  him,  by  virtue  of 
the  statute,  it  was  not  necessary  that  he  should  have  claimed 
her   as  a   slave.     State  v.   Jones,   Hired.,  154. 

20.  Where  the  administrator  of  a  person,  who  died  intestate 
before  the  act  of  1844.  ch.  51,  sold  land  belonging  to  the  heirs, 
by  their  consent,  and  one  of  the  heirs,  who  were  also  the  next  of 
kin,  had  been  advanced  in  personalty,  it  was  held  1  hat  in  the  dis- 
tribution of  the  fund  arising  from  the  sale  of  the  land  among 

24 


370     DISTRIBUTION.— DIVORCE  AND  ALIMONY.— I. 

the  next  of  kin,  the  said  advancement  could  not  be  taken  into 
account;  that  fund  being  considered  as  realty.  Lawrence  v. 
Rayner,  Bush.,  113.  (Sec  Revised  Code,  ch.  38,  wee.  1,  rule  2, 
and  ell.  64,  sec.  2.) 

21.  Where  a  father  put  his  son  in  possession  of  land,  and  after- 
wards treated  it  as  liis,  but  gave  him  no  deed  therefor,  and  hy 
agreement  between  the  father,  his  son  and  a  son-rn-la  w,  the  latter 
conveyed  to  the  son  several  slaves  in  exchange  fir  the  land 
given  to  him  by  the  father ;  it  i  advance- 
ment of  the  slaves,  and  not  of 'the  land,  i<>  the  son.     Credkv 

Busb.,  225. 

22.  Slaves  advanced  to  a  daughter,  by  her  father,  on  her  mar- 
riage, and  remaining  in  tin   p  issession  of  her  lie,  Kami  until  the 

if  her  latin  r,  isue,  an 

F  the  time  of  the  marri  ig  to  the 

!■:  tid,  notwithstanding  the  death  ofthewrfe  ir  father. 
Him  <                                        •  56. 

23.  Where  a  father  put  a  slave  in  the  po  ne  of  his 
children,  and  afterwards  became  no  d  died  in- 
testate, without  revoking  the  gift  of  thi  remained 
in  the  possession  of  his  child  until  the  fath  th;  it  wok 
held  to  be  an  advancement,  notwithstand  I  guardian 
appointed  for  the  father  ha'd  done  all  he  could  to  revoke  the 
bailment,  and  had  demandi  d  the  possession  of  the  slave  before 
the  father's  death.     Largent  v.  Berry,  ?>  Jones,  531. 

See  (Donatio  causa  mo\  tis. )  (Jurisdiction — Of  the  County  and 
Superior  Courts,  34.)     (Parties,  2-3.) 


DIVORCE  AND  ALIMONY. 

I.  When  both  or  either  will  be  granted.      I  IT.  Proce  of  divorce  and 

alimony. 

1.        WHEN    BOTB    OR    EITHER    WILL      BE    GRANTED. 

1.  Where,  in  a  petition  for  divorce  from  the  bonds  of  matri- 
mony for  the  cause  of  adultery,  it  appeared  that  the  adultery 
was  committed  before  the  act  of  1814  was  passed,  the  petition 
wasdismissed,  because  that  was  Hi  ■  first  law  which  gave  authority 
to  the  courts  to  take  cognizance  'if  the  subject  of  divorce,  and 

■  I  shall  nut  lie  so  construed  as  to  have  a  retroactive  effect 
DicUnson  v.  Diclanson,  '-'>  Murph.,  327. 

2.  The  act  of  1814  authorized  a  dissolution  of  the  marriage 
contract  for  two  causes  only;  and  a   single  art  of  adultery  in-a 


DIVORCE  AND  ALIMONY.  371 

married  man,  whereby  he  became  infected  with  a  disease,  which 
he  communicated  to  his  wife,  was  held  no  sufficient  cause  for  a 
divorce,  because  the  injury  received  by  the  wife  was  not  commu- 
nicated under  such  circumstances,  as  constituted  any  one  of 
the  causes  provided  for  in  the  act.  Long  v.  Long,  '2  Hawks., 
189. 

;'..  Fraud  in  the  contract  of  marriage,  to  entitle  a  party  to  a 
divorce  under  the  act  of  1827,  must  consist  of  something  more 
than   mere  defects;  there  must  be  such  niisn  p  ms  as 

would  deceive  a  person  of  ordinary  prudence;  and  therefore, 
the  husband,  at  the  marriage,  might  have  known  that 
his  intended  wife  was  pregnant,  and  five  months  afterwards  she 
had  a  mulati  i  child,  it  was  hdd,  thai  he  he  was  not  entitled  to 
a  divori         S  r.  3  Dev.    535. 

4.  Where  a  mail   was  induced  to  marry  a  woman,  the  mother 

of  a  bastard,  by  her  representing  to  him  that  the  child  was  his 

(he  being  a  white  man, )  and  that  as  to  all  the  world  but  him 

i  i  virtuous,  a  id  aft  a*  tl  lie  discovered  that  the 

child  was  a  mulatto,  it  ti  it  ttewasenti  livorce, 

if  the   c  ilor  was  so  indistinct  as  to  misl  i  of  ordinary 

if  the  child  had  been  carefully  kept  from  his  view. 

■  3  Dev.,  548. 

'>.  Thi       t  of  1827  is  n  ctive  in 

m.     Ibid.     (See  Rev:  Code,  eh.  39,  sec.  1  and  -■) 

6.  A  p  itition,  praying  for  a  divorce  a  vinculo  >  only, 

dismissed,  it'  the  petitioner  be  not  entitled  to  that  relief, 
and,  upon  that  being  refused,  declines  asking  for  any  cither;  for 

■  for  a  divo  i  v&a  in  a  proper  case  for 

it.  will  never  b(    made  by  the  court,  unless  at  the  instance  of  the 

m,  2  Dev.  and  Bat,  64. 

7.  The  adult  r,  of  th  anient  of  her  by 

id,  will   nol   entitle  him   to  a  divorce  from  bed  and 
board.     Ibid. 

8.  An  unreasonable  delay  by  one'  party,  after  a  probable 
kn.iwt  I  riminal  conduct  of  the  other,  will,  if  unaccouted 
for,  pr<  i  ch  party  from  obtaining  a  divorce  from  bed  and 
board.     1 

!).    Every  objection,  which  can  be  u  inst  a  divorce  from 

bed  and  board,  will   apply  more  strongly  against  one  a  vinculo 

though  a  divorce  from  bed  and  board  may  be 

some  instances,  to  a  person  nol   entirely  fautless.  yet 

p  lioy  of  the  law,  the  interest  of  the  offspring,  the  tranquility 

and  happiness  of  families  in  general  forbid  the  total  dissolution 

of  the  marriage,  at  the  suit  of  a  person,  to  whom  default  in  any 

of  the   essential  duties  of  married  life  can    be  fairly  imputed. 

Ibid. 

10.  The  law  will  not  be  active  to  protect  a  husband  from  his 
wife,  if  his  acts  have  "been  conducive  to  her  turpitude,  or  if  his 


372  DIVORCE  AND  ALIMONY.— I 

conduct  evince  indifference  on  his  part  to  her  profligacy,  in  its 
inception  or  progress.  And  whore  a,  wife  openly  prostitutes  her- 
self through  a  period  of  several  years,  in  the  neighborhood  of 
her  husband,  and  he  makes  no  enquiry;  does  not  interpose  nor 
even  utter  a,  murmer,  it  implies  a  license  to  the  wife,  so  far  as 
his  rights  and  honor  are  involved,  to  act  aw  she  pleases,  and 
amounts  by  fair  intendment,  and  constructively,  to  i  ondonation. 
Ibid. 

11.  Suit  for  a  divorce  ought  to  be  brought  within  soshort.a 
time,  as  reasonably  to  show  that  the  party  is  smarting  under^ 
and  acting  on,  a  proper  sense  of  the  wrong  itself  and  that  lie 
has  not  acquiesced,  until  he  finds  i1  neoi  himself 
to  others,  or  becomes  desirous  of  a  divorce  for  some  other  ulte- 
rior purpose.     Ibid. 

12.  The  discretionary  authority  given  by  the  ad  of  1814,  to 
the  court,  to  decree  a  dissolution  of  the  marrias  aration 
of  the  parties,  when  one  of  then)  leaves  the  other,  and  is  living 
in  adultery,  is  not  an  arbitrary  discretion,  but  a  sound  and  judi- 
cial cue.  founded  on  reasonable  and  fixed  principles.  Ibid.  (See 
Rev.  Code,  ch   39,  sec.  2.) 

13.  The  courts  of  this  State  have  no  power,  in  petitions  for 
divorce  and  alimony,  under  our  law,  to  allow  ; 

lite.     Wilson  v.    Wilson,  2  Dev.  and  Bat.,  377.  power  is 

now  given  them.     See  Rev.  Code,  ch.  oi).  sec.  15.) 

14.  A  petition,  which  states  that  the  husband  has  treated  the 
wife   with  cruelty,   and  offered  indignites   to  on,   but 

no  particular  of  either,  is  not  sufficient,  to  author- 
ize a  decree  For  a  divorce.     Ibid. 

15.  A  husband  cannot  obtain  a  divorce  from  his 

ground  of  adultery  committed  by  her  after  a  separate  it  if  such 
ition  has  been  caused  by  the  fault,  or  at  the  instigation  of 
the  husband.     Moss  v.  Moss,  -  Ired.,  55. 

1(>.  Where  husband  and  wits  are  living  in  a  voluntary  state  of 
separation,  the  court  may,  in  some  rases,  --rant  a  divorce  a  mensa 
fo  '  the  cause  of  adultery  committed  during  such  sepa- 
ration. But  in  no  ease  will  the  r.-uri  decree  a  divorce  <t  vinculo 
matri7nonii  on  the  petition  ot  a  wife,  who  has  sepai  ed  herself 
and  lives  apart  from  her  husband,  on  the  ground  of  adultery 
committed  since  the  separation;  unless  she  alleges  and  proves. 
on  the  trial  of  issues  under  her  petition,  that  she  was  compelled 
to  such  separation  by  the  violent  or  outrageous  conduct  of  her 
husband,  in  which  case  it  shall  he  deemed  that  he  separated 
himself  rrom  her.      Wood  v.  Wood,  5  Ired.,  674. 

17.  Where,  in  a  decree  of  divorce,  alimony  is  assigned  to  the 
wife  in  certain  specific  articles,  as.  for  instance,  in  slaves,  the 
wife's  right  to  the  enjoyment  of  the  property  only  continues  un- 
til a  reconciliation,  or  until  the  death  of  either  party ;  and,  during 
the  separation,  the  provision  for  alimony  may  be  altered  at  the 


DIVORCE  AND  ALIMONY.— I.-II.  373 

discretion  of  the  court,  upon  any  change  of  circumstances.     Ro- 
gers'?.  Vines',  6  Fred.,  293. 

18.  Where,  on  a  divorce  a  mensa  et  thoro,  the  wife  is  allowed, 
in  part  of  alimony,  the  rent  of  certain  lands,  out  of  which  she 
makes  an  annual  saving,  the  husband  has  no-right  to  the  amount 
accumulated  out  of  such  saving.  Burden  v.  Joyner,  9  Ired., 
339. 

19.  A  divori  e  a  vinculo  matrimonii  will  not  be  granted  unless 
it  lie  alleged  and  proved  that  the  husband  or  wife  lived  in  adul- 
tery, after  the  separation  had  taken  place.  Handey  v.  Hansley, 
10  Ired., 

20.  If  a  wife  Leave  her  husband,  and  refuse  to  live  with  him, 
without  a  sufficient  cause,  and  he  afterwards  lives  in  adultery, 
this  is  qo  cause  for  granting  her  a  divorce,  Foy  v.  Foy,  13 
Ired.,!'". 

21.  [fa  husband  be  accused  of  a  crime,  or  be  guilty  of  it,  this 
is  no  good  cause  for  his  wife  to  refose  to  live  with  him,  and  she 
is  nut   thereby  justified   in  leaving-  him,  as  she  took  him  "for 

i  :."     Tbid. 

22.  Cruelty   towards  the  children  of  a  wife  by  a  former  hus- 
band, especially  if  not  charged  as  an  intentional  insult  or  indig- 
nity to  her,  is  n  it   a  ground  for  a  partial  divorce  under  th< 
Rev.  Code  I,  sec.  3.     Everton  v.  Everton,  5  Jones,  202. 

23.  Hi  breeding,  coarse  and  insulting  language,  jealousy  and 
charge  i  of  adultery,  not  accompanied  by  threats  of  violence,  or 
by  an  abandonment  of  the  marriage  bed,  are  not  sufficient 
grounds  for  such  a  divorce.     Ibid. 

21.  Violent   and   cruel  conduct  in  the  husband,  in  chastising 
':  room  of  his  wife,  whereby  her  disease  was 
■  avated,    not  charged  as  having  been  i  \  'o  annoy, 

harass  r,  is  not  sufficient  to  entitle  the  wife  to  a  di- 

vorce a  'thor  .     Tbid. 

II.       PROCEEDINGS     IN    CASES    OF   DIVORCE   AND  ALIMONY. 

1.  To  every  petition  for  a  divorce,   there  must  be  an  affidavit 

:  ■■{.  thai  the  tacts  charged  have  existed,  and  been  known 
to  the  petitioner,  six  months  before  the  filing  of  the  petition. — 
Dickinson  v.  Dickinson,  Murph.,  327. 

2.  A  petition  tor  a  divorce  ought,  as  far  as  possible,  to  charge 
specifically  the  facts  to  be  given  in  evidence.  Where  open  and 
promiscuous  prostitution  is  the  foundation  of  the  suit,  it  may  be 
sufficient  to  allege  it  in  more  general  terms,  because  the  charge 
is  of  a  nature  to  admit  of  very  general  evidence;  but  when  the 
petitioner  relies  on  adultery,  committed  with  a  particular  per- 
son, or  at  a  particular  time,  such  person,  time  and  place  ought 
to  be  specifically  and  plainly  charged.  Wliittington  v.  //  '/nttington, 
■2  Dev.  and  Bat.,  64 


374  DIVORCE  AND  ALIMONY.— II. 

3.  A  party  applying  for  divorce  is  bound  by  his  admission,  in 
the  pleadings  or  on  record,  of  facts  which  legally  bar  his  appli- 
cation, even  though  a  jury,  on  issues  submitted  to  them,  find  a 
verdict  in  contradiction  of  such  facts.  Moss  v.  Moss,  2  Ired., 
55. 

4.  If  a  wife  petition  for  a  divorce  a  vinculo  matrimonii,  and 
allege  in  her  petition  that  she  separated  herself  from  her  hus*- 
band,  she  is  estopped  by  this  averment,  and  a  verdict,  that  her 
husband  separates  himself  from  her.  will  not  be  regarded  by  the 
court,  unless,  upon  a  proper  issue,  circumstances  of  outrage  and 
violence,  justifying  such  separation  by  her,  he  found  by  a  .jury. 

U'notlx.  Wood,  5  Ired.,  674. 

5.  In  a  proceeding  for  a  divorce,  the  issues  submitted  and  the 
verdict  found  should  be  as  specific  and  certain,  as  Ihe  facts 
alleged  in  the  petition.     Ihid. 

6.  On  a  petition  by  a  wife  for  a,  divorce,  the  court  will  not  per- 
mit an  issue  to  be  submitted  to  the  jury  in  such  general  terms 
as  these:  "did  the  defendant,  before  the  petitioner  left  his  house, 
offer  such  indignities  to  her  person,  as  to  render  her  condition 
intolerable  and  life  burdensome?"  The  petition  musl  set  forth 
the  facts,  the  jury  must  pass  upon  those  tacts,  and  on  their  ver- 
dict the  court  will  determine,  whether  the  facts  found  constitute 
a  proper  case  tor  a  divorce     Harrison  v.  Harrison,  7  Ired.,  484. 

7.  As  the  allegations  in  a  petition  for  divorce  are  directed  by 
statute  to  be  sworn  to.  it  is  more  emphatically  required  in  such 
cases  than  in  others,  that  the  allegations  and  proof  should  cor- 
respond; otherwise  the  court  cannot  decree  a  divorce.  Foy  v. 
Foy,  13  Ired.,  90. 

8.  Where  a  petition  for  a  divorce  is  amended,  the  facts  alleged 
in  the  amendment  must  be  sworn  to,  or  they  will  not  lie  regard- 
ed.    Ibid.  _ 

9.  In  suits  for  divorce,  or  for  alimony,  brought  by  the  wife, 
after  the  preliminary  adjudication  that  the  petition  is  tit  to  be 
entertained,  which  is  made  in  every  case  before  such  suit  can  be 
carried  on,  it  is  the  duty  of  the  court  under  the  act  of  1852,  ch. 
53,  without  considering  the  merits  of  the  case,  to  make  a  reason- 
able allowance  of  alimony  for  the  wife  pendente  life:  and,  if,  upon 
motion,  the  allowance  is  refused,  the  wife  may  appeal  to  the 
supreme  court.  Taylor  v.  Taylor,  1  Jones  528.  (This  matter  is 
now  regulated  by  the  Rev.  Code,  ch.  39,  sec.  15.) 

10.  In  order  to  entitle  one  to  a  divorce  under  the  act,  Rev. 
Code,  ch.  39,  sec.  3,  the  charges  contained  in  the  petition  ought, 
according  to  the  5th  section,  to  be  in  legal  language,  and  to  be 
particular  and  certain  ,  as  to  acts^  persons,  times  and  places. 
Everton  v.  Everton,  5  Jones,  202. 

See  (Evidence — Admissions,  declarations,  and. act*  ( of  parties, 
privies  and, others,  91,) 


DOGS— DOMICIL.  375 


DOGS. 

1.  The  owner  of  sheep  is  justified  in  killing  a  dog,  which  had 
destroyed  some  of  his  sheep,  and  returned  upon  his  premises 
apparently  for  the  purpose  of  destroying  others,  although  the 
dog,  at  the  time  he  is  killed,  be  not  in  the  very  act  of  destroying 
or  worrying  the  sheep,  and  although  it  be  not  shown  that 
the  owner  of  the  dog  was  cognizant  of  his  bad  qualities,  or  that 
there  wa  •  no  other  means  of  preventing  the  injury.  Parrott  v. 
Harts;!,  1,1.  4  Do  v.  and  Bat.,  110. 

2.  When  a  dog  is  chasing  animals  ferae,  naturae,  or  fighting 
with  another  dog,  a  necessity  for  killing  him  must  be  made  out. 
or  the  killing  will  not  be  justified.     Ibid. 

.').  It  is  not  necessary  to  the  maintenance  of  an  action  for 
killing  a  dog,  that  the  dog  should  be  shown  to  be  of  some  pecu- 
niary value.  Dogs  belong  to  that  class  of  domiciled  animals, 
which  the  law  recognises  as  objects  of  property,  and  what  it 
recognises  as  property  it  will  protect  from  invasion,  by  a  civil 
action  on  the  part  of  the  owner.  Dodsoti  v.  MocJc,  -1  Dev.  and 
Bat,  146. 

4.  A  dog  may  be  of  such  ferocious  disposition,  or  predatory 
habits,  as  to  render  him  a  nuisance  to. the  community,  and,  if 
permitted  to  go  at  large,  he  may  be  destroyed  by  any  person 
But  the  law  does  not  require  exemption  from  all  fault  as  a  con- 
dition of  existence;  and  the  trivial  offences  of  stealing  an  egg, 
snapping  at  one  man's  heel  and  barking  at  another's  horse,  and 
the  being  suspected  of  having,  in  early  Life,  worried  a  sheep, 
will  not  put  a  dog  out  of  the  pale  of  the  law  and  justify  any 
person  in  killing  him.     Ibid. 

5.  A  person  cannot  kill  a  dog  in  the  owner's  house  or  yard, 
upon  the  pretence  that  he  is  a  nuisance,  because  he  had  at  a 
former  period  chased  or  bitten  some  one  else.  Perry  v.  Phipps, 
10  Ired..  259. 

6.  When  a  man  has  been  attacked  by  a  dog  on  the  owner's 
premises,  but  the  dog  is  driven  off  by  the  family,  so  that  the 
man  is  no  longer  in  danger  of  being  bitten,  he  is  not  justified 
in  killing  the  dog  while  running  from  him.     Ibid. 

See  (Mad  dogs.) 


DOMICIL. 

.1.  The.dornicil  of  origin,  of  a  person,  continue  suntil  he  ac- 


376         DONATIO  CAUSA  MORTIS.— DOWER,  &c.T 

quires  another,  by  actual  removing  to  another  country,  with  the- 
intention  of  remaining  in  the  latter  altogether,  or  for  an  indefi- 
nite period.     Home  V.  Home,  9  Ired.,  !>y. 

2.  Two  things  must  concur  to  constitute  a  domicil;  first,  res- 
idence, and  secondly,  the  intention  to  make  it  a  home.  If  these 
two  concur,  it  makes  no  difference  how  short  his  residence  may 
be  in  the  new  domicil.     Ibid. 

See  (Constitution — Construction  of  various  clauses  of  the  con- 
stitution, 14.)    (Evidence — Hearsay  and  common  reputation,  5.) 


DONATIO  CAUSA  MORTIS. 

1.  A  on  his  death  had  directed B  to  go  into  his  field,  to  a  place 
pointed  out,  and  get  a  sum  of  money  there  deposited,  which,  in 
Hie  event  of  A's  death,  15  was  to  divide  among  A's  children, 
held,  that  this  was  not  a  donatio  causa  mortis  to  A's  children; 
and  that  the  defendant's  acknowldgement  of  the  above  facts, 
and  of  his  having  received  the  money,  was  not  good  evidence 
thereof  to  vest  the  money  in  him  as  trustee  for  the  children,  i  < 
as  to  defeat  the  statute  of  distributions.  Windows  v.  Mitchell,  1 
Murph.,  127. 

2.  A  negotiable  bond  or  note,  not  payable  to  bearer,  cannot 
pass  at  law  as  a  donatio  causa  mortis;  and  the  executor  of  the 
donor  may  recover  its  value  in  trover  from  the  donee.  Overton 
v.  Sawyer,  7  Jones,  b-. 


DOWER. 

See  (Widow — Of  her  dower. ) 


DRAINING  LOW  LANDS. 

1.  In  the  case  of  a  petition  to  the  county  court,  to  permit  a 
party  to  cut  a  ditch  for  the  purpose  of  draining  his  land  through 


DRAINING  LOW  LARDS-..  377 

the  land  of  another,  the  .jury  alone  have  the  power  to  decide 
■whether  the  ditch  is  needed,  how  it  shall  be  dug,  and  the  dam- 
ages to  be  paid  to  the  owner  of  the  land;  and  the  county  court 
can  only  direct  the  verdict  to  be  recorded  or  order  a  new  jury. 
Collins  v.  Haughton,  4  [red  .  420.     (See  Rev.  Code,  ch.  40.) 

2.  Where  A  and  B,  owning  lands  adjoining  each  other,  agreed 
by  parol,  that  B  might  cut  ditches  on  A's  land,  to  be  use- 
ful both  to  A  and  B,  and  they  should  be  dug  under  the  di- 
rection of  A,  and  until  he  was  satisfied  and  when  the  ditches 
were  dug  accordingly  by  B,  and  used  and  enjoyed  by  him 
during  A's  lifetime  and  for  three  years  afterwards  without  com- 
plaint; it  us  is  held  that  although  the  license  to  use  the  ditches 
on,.  A's  land  expired  witb  A's  death,  and  the  person  succeeding 
to  his  title  might  fill  up  the  ditches,  if  he  thought  proper  to 
do  so,  yet  he  could  not  sue  B  for  a  nuisance,  especially  without 
.•I  reasonable  no  ice  to  discontinue  the  ditchea  Ghri  rv.  Paget 
4  [red.,  111. 

3.  A  land  owner  has  a  right,  even  without  the  benefit  of  a 
prescription,  to  have  the  water  from  his  land  to  flow  through  the 
natural  channels  and  drains,  on  the  land  of  another  person 
convenient  to  it ;  and  when  a  third  person  cuts  him  oil'  from  such 
right  by  an  i  mbankment,  be  may  lawfully  remove  such  embank- 
ment.    Overton  v.  Sawyer,  1  Jones,  308. 

4.  Whether  the  owner  of  the  land,  on  which  the  embankment 
was  made  could  sue  the  person  going  on  his  land  to  remove  it. 

But  certainly  no  one  else  could  complain  of  it.    Ibid. 

5.  Where  the  owner  of  a  trad  of  land,  upon  which  there  is  a 
ditch,  sells  i  rt  offlie  land,  including  a  portion  of  the 
ditch,  he  has  no  right  to  stop  up,  or  obstruct  even  partially,  the 
ditch  below,  so  as  to  throw  the  water  back  upon  the  other  part; 
and  this  is  so,  whether  the  ditcli  was  originally  made  to  drain 
the  upper  part  of  the  tract  or  not :  for  if  it  actually  answered 
purpose,  the  purchaser  was  entitled  to  the  unmolested  use  ot  it. 
Shaw  v.  Eth  ridge,  3  Jones,  300. 

ti.  Where  there  was  a  ditch,  which  drained  the  lands  of  two 
proprietors  respectively,  and  the  owner  of  the  lower  tract  so 
obstructed  the  ditch,  as  to  injure  the  other  party's  crop  by  the 
ponding  of  the  water,  it  was  In  1,1  that  an  action  of  trespass  cai 
the  case  was  the  proper  remedy.    Sliaio  v.  Etheridge,  7  Jones,  225. 

7.  Two  or  more  separate  proprietors  of  land  cannot  join  in  the 
same  petition  to  drain  their  lands,  without  alleging  that  a  com- 
mon ditch  would  drain  the  lands  o£  all  the  petitioners.  Shaw 
v.  Burfoot,  8  Jones  ?A\. 

See  (License,  3-4.) 


378    DRUNKENNESS.— EASEMENT.— EJECTMENT— I. 


DRUNKENNESS. 

See  (Indictment — From   and   matters   relating 
(Indictment — When  an  indictment  will  lie,  68.)" 


thereto,   30.) 


EASEMENT. 

See  (Evidence— Presumptions,  34-36-37-40-44.)    (Grant— Of 
the  presumption  of  a  grant,  6-7-11-12-13-1 4. ) 


EJECTMENT. 


I.   For  what  the  action  will  lie. 
II.  Conimeno  mei  l  oi  the  action. 

III.  01  the  declaration. 

IV.  Of  the  defendant's  bond. 

V.  Entry,  when  necessary  and  its  effect. 
VI.   Of  the  defendant's  possession. 

VII.  Survey. 


VIII.  Of  the  title  necessary  to  support 

the  action. 
.XI.   Of  the  defence,  and  herein  of  the 

consent  rule. 
X.  Judgment  and  writ  of  possession. 

XI.  Trespass  for  mesne  profits. 

XII.  When  tie  action  abates. 


7.        FOR    WHAT    THE    ACTION    WILL    LIE. 

1.  A  house,  or  even  the  upper  chamber  of  a  house,  may  be 
hold  separately  from  the  soil  on  which  it  stands,  and  an  action 
of  ejectment  will  lie  to  recover  it.  Gilliam  v.  Bird,  8  Ired., 
280. 

2.  "Where  A  agreed  to  permit  B  to  put  a  saw  mill,  and  houses 
and  fixtures  on  his  land,  for  the  purpose  of  carrying  on  the  busi- 
ness of  sawing  lumber,  "  as  long  as  B  wished,"  lie  having  the 

Erivilege  of  taking  away  the  improvements,  it  was  held,  that  B 
ad  a  determinable  life  interest  in  the  casement  on  A's  land,  and 
that  ejectment  would  lie  to  recover  the  house  and  other  im- 
provements, together  with  the  easement  on  the  land.  Stancd 
v.  Calvert,  1  Winst.,  104. 


EJECTMENT— II.  III.  379 

II.       COMMENCEMENT    OF   TnE    ACTION. 

1.  The  commencement  of  an  action  of  ejectment  is  the  service 
of  the  c^eclaration  on  the  tenant  in  possession:  and  if  the  title  of 
the  lessor  of  the  plaintiff  be  complete  at  that  time,  he  may 
recover.  Thompson  v.  Red,  2  Jones,  412.  S.  P.,  Attcrllx.  McLure, 
4  Jones,  371. 

in.    'of  the  declaration. 

1.  A  declaration  lor  a  "tenement,"  bounded  by  metes  and 
bounds  particularly  expressed,   is  sufficiently  certain.     ( '■' 

v.   Wood   ,  ,  1  Hay..  24,  (32.) 

2.  In  a  demise  in  a  declaration,   the  words    "from  the  date," 
and  •'  from  the  day  of  the  date,"  signify  the-  same  thing,  and  are 
either  inclusive  or  exclusive,  according  to  the  intent.  Ho 
Beynokls,  1  Hay.,  Ill  (132:) 

3.  A  declaration  in  ejectment,  served  on  a  t  arant  i 

cannol  tded,  so  as  to  comprise  more  lands  than  thos  i  al- 

ready described.  Carter  v.  Branch,  1  Hay.,  135,  (155.)  S.  P.. 
Troxler  v.  Gibson,     Ibid.  465,  (536.) 

4.  Where  the  demise,  Laid  in  a  d<  claration  in  ejectment,  is 
about  to  expire  1"  fore  a  tri  il  can  ;'-  had,  the  court  will  ]  i  rmit 
the  plaintifl  to  amend  by  extending  the  term.  Tour,  v.  Erwin, 
1  Hay.,  323,  (371.)  S.  P.,  Faircloth  v.  i,  Ibid.,  501, 
(577.) 

5.  A  corporation  must  make  its  leases  under  seal,  but  the 
lease  which  is  stated  in  a  declaration  in  ejeectment  is  not  to  be 
proved,  and  will  be  presumed  to  be  a  legal  one.  University  v. 
Johnson,  1  Hay..  373,  (429.) 

6.  If  ejectment  be  brought  for  a  moiety,  a  third  may  be  re- 
coven  '.  Sq  '  es  v.  Eiggs,  2  Hay..  150,  (326.)  S.  P.,  Botvden  v. 
Evans,  Ibid,  222.  (396!)  (Tin  eemto  overrule  Young 
v.  Drew,  2  Hay.,  100,  (260,)  S.  C.  Tay.,  119,  (70.) 

7.  When  a  devise  was  laid  to  have  commenced  on  the  1st  of 
February,  1801,  and  possession  taken  under  it,  and  "  afterwards, 
to  wit,  on  the  1st  of  January,  1801,"  defendant  entered ;  it  was 
held,  grind,  by  lorce  of  the  words  "afterwards,"  and  the  other  words 
may  be  rejected  as  surplusage  Brown  v.  Lutterloh,  Conf.  Rep., 
425,  (489.)     S.  C,  2  Hay.,  220,  (394.) 

8.  Where  the  date  of  the  demise  and  the  commencement  of  the 
term  were  left  blank  in  the  declaration,  it  ivas  held  bad,  and 
the  judgment  was  arrested.     Hogg  v.   Shaw,  Conf.  Rep.,   457, 

<514}       ■  ■  ,  •    •     , 

9.  Motion  to  file  a  new  declaration  in  ejectment,  the  original 

being  lost  out  of  the  office  and  the  defendant  served  with  a 
notice  to  produce  a  copy,  was  disallowed.  Cleaveland  v.  Grimes, 
1  Murph.,  268. 


380  EJECTMENT.— III. 

10.  No  very  strict  certainty  in  the  desription  of  lands  in  a 
declaration  in  ejectment  is  necessary,  to  warrant  the  writ  of  pos- 
sesion. Hence,  the  following  description  was  held  sufficient: 
"one  tract  of  land  containing  150  acres  lying  in  the  county  of 
Martin,  in  the  low  grounds  of  Roanoke  on  the  the  south-side,  it 
being  part  of  350  acres  granted  to  J.  M.,  the  7th  of  November, 
1730,  beginning  at  a  sycamore  tree,  supposed  to  he  Colonel  C. 
P.'s  line,  and  so  extending  in  and  out,  according  to  courses  of 
patent  aforementioned  to  include  and' make  out  the  abovefsaid 
150  acres  with  the  appurtenances."  Byrd  v.  Clark,  2  Car.  L.  E., 
622,  (425.) 

11.  A  return  of  "executed"  by  the  sheriff,  on  ;i  declaration  in 
ejectment,  is  not  a  sufficient  foundation  for  a  judgment  by  default 
against  the  casual  ejector.  Affidavit  should  be  made  of  per- 
sonal service  on  the  tenant  in  possession.  Bledsoe  v.  Wilson,  2 
Dev.,  314. 

12.  When  a  declaration  is  served  by  leaving  a  copy  at  the 
house,  or  with  the  servant  of  the  tenant,  judgment  l>y  default 
against  the  casual  ejector  should  not  be  entered,  without  a  ride 
upon  the  tenant  to  show  cause  why  such  service  should  not  be 
deemed  sufficient.     Ibid. 

lo.  One  tenant  in  common  may  declare  upon  a  several  demise 
of  the  whole  1  reel  of  land,  ami  recover  possession  of  his  propor- 
tion.    Hatch  v.  Thompson,  3  Dev.  411. 

14.  In  all  cases  of  permis  ive  occupations,  the  demise  in  the 
declaration  must  be  laid  after  the  determination  of  the  license. 
Carson  v.  Bo 

15.  On  the  I  demise  of  one  tenant  in  common,  the 
plaintiff,  in  ejectment,  may  recover  his  term  in  the  undivided 
share  of  that  tenant,  but  the  lessors  of  the  plaintiff  must,  at 
their  peril,  take  oul  a  wril  of  possession  only  for  the  land  to 
which  they  have  title.     Godfrey  v.  Cartwright,  4  Dev.,  4S7-. 

1(3.  Where  a  d  -ease  in  ejectment  is  laid  from  two  or  more 
lessors,  and  it  appears  1hai  those  lessors  are  tenants  in  common 
with  one  who  has  not  joined  in  the  demise,  the  plaintiff  may 
yet  lie  entitled  to  recover,  according  to  the  interest  of  his  lessors, 
though  if  one  of  the  joint  lessors  had  no  title,  the  plaintiff  could 
not  recover  a1  all.     Bronson  v.  Paynter,  4  Dev.  and  Bat.,  393. 

17.  In  an  action  of  ejectment,  the  quantity  of  land  mentioned 
in  the  declaration  need  not  correspond  with  that  which  the 
lessor  of  the  plaintiff  claims.  He  may  declare  tor  an  indefinite 
number  of  tracts  of  land,  and  recover  according  to  the  quantity 
to  which  he  proves  title;  especially  when  it  appears  that  all  the 
tracts  join  each  other  and  constitute,  in  fact,  but  one  tract  in 
the  possession  of  the  defendant,  Haggins  v.  Ketchum,  4  Dev. 
and  Bat.,  415. 

18.  A  plaintiff,  kv  ejectment,,  may  declare  upon  the  same  title 
against  as  many  persons  as  are  in  possession  of  the  land  claimed, 


EJECTMENT.— III.-IV.        •  381 

though  then  posses  ions  maj  h  several  and  distinct  of  di 
parcels  of  tin'  land.     Lovex.   M'tlli-  •  I       1,344. 

19.  A   declaration    in    ejecl 

'  parcel  :of  th<     ai 
v.  B,  anson,  5  [re  I., 

20.  •  die  ■  ■'  :'.  lessi  rs  in  an  actio  i  i  ight 
to  ha  i  t  to  a 
liability      o  his 

plantiff, 
he  will  be  entitled  abursed  for  such  out  of 

li  fendant.      .'  ears,   ! 

[red.,  87. 
21.1  rient, 

In 
ha      i  action 

.in  the 
. .      ' 

22.  In  ejectment  all  the  co-tei  i 

.  _  [red.,  369. 

23.  eirs  at  law  can  i  'in  ejectmen 

his  se]  arate  i  j  >intly  with 

not  join  ii  a.     Dowel  v 

1 
bound 

i  •      ■  '  where 

ti  marked  i  survi 

obtainin  he  grant,  and 

.    ion,  the 

and  re< 

t  in  ej  insb       me  count, 

and  thci  om  one 

aiming. 

See   (E  ■     Of  the  defence   and    herein  of  the  >■ 

'■'•'■ ) 

IV.       OF    THE    DEFENDANT'S    BOND. 

1.  A  bond  given  by  one  who  app]  [ant  in 
an  ejectment,  with  a  condition  to  be  void,  if  he  shall  pay  all 
costs,  which  I  :  adjudged  against  him,  doi  -  not  comply 
with  the  requisitions  of  the  act  of  1804,  and  a  sci.  fa.  cannot  b< 
brought  on  it  as  a  bail  bond;  but  it  is  valid  as  a  common  law 
bond,  and  will  sustah  an  action  of  debt  Eiclcs  v.  Hayworth,  4 
Dev.,  584.      (See  Rev.  Code,  ch.  31,  sec.  46.) 

2.  The  bond  of  a  person,  seeking  to  defend  an  action  of  eject- 


382  EJECTMENT,— IVC-V.-VI. 

ment,  may  be  made  to  the  lessor  of  the  plaintiff,  but  it  is  more 
proper  to  make  it  payable  to  the  nominal  plaintiff.     Ibid, 

3.  That  bond  is  in  all  respects  similar  to  a  bail  bond  required 
by  the  law  in  civil  suits,  except  that  it  is  not  made  to  the  sher- 
iff, and  does  u  it  require  the  defendant  to  enter  his  appearance!, 
Its  delivery  may  lie  inferred  from  proof  of  its  being  signed, 
sealed,  and  deposited  in  the  office  of  the  clerk  of  the  court,  where 
the  action  is  pending.     Ibid. 

v.     e:-ti:y,    when  necessary  and  n 

1.  In  this  ma!  entry  is  necessary,  until  an  ad 

ion  to  bar  an  entry  must  be  a 
continued  oie    for  seven  years,  withoul   i  claim  on  the 

other  side.  fay.      8,  I 

2.  Tli  i  in  all  where 
an  individual  woi                                 Blount  v.  .               .  2  Hay., 

17.)     S.  P.,  i  told,    U       -    1J4    !.) 

3.  A  conv  of  1  ityis  n  it  valid, 

ipossessio  f  srsely 

Ibid. 

4.  If  sen  long  out  of  possession,  makes  a 
conveyance  on  th  land,  it  will  not  be  the  c  .i.  so  a,  right 
of  entry.     Anonymous,  2  Bay.,  134,  (302.) 

5.  An  entry,  to  divesl  an  e  a  other,  must  be 
on  the  lands  claim  !  by  him;  and  if  there  be  ors 
en  patented  lands,  the  entry  mast  be  on      ich    ,          possessed 

i    s,  2  Hay.,  284,  (479.) 

6.  A  deliberate  avowal,  on  the  part  ot  a  pi  of  title  in 
the  claimant,  or  a  serious  assent  to  the  validity  of  his  title,  will 

ssary,  and  is  equivalent  in  its 
effects  to  an  entry  or  claim.     Ibid. 

7.  A  by  the  University  is  not  valid,  when  some 
person  is  in  :  lob  of  the  land.  The  grantee  of 
the  State  is  not  in  on  without  entry,  tho  ■  i  the  State 
herself  mi  ?h             i              Arnold,  '1  Hay.,  287,  (    67.) 

See  (Ej  sctmen  -Of  the  title  necessary  to  support  the  action, 
63.) 

VI.       OF    THE    DEFENDANT'S    POSSE! 

1.   Where  i  that,  several  years  befoi      he    ction  wjaa 

brought,  the  defendant  had  possessed  a  building,  which  was  in- 
tersected by  the  line  between  him  and  the  less;.:  i  f  the  plaintiff, 
and  the  building  had  two  rooms,  one  of  whit  h  was  a  corn  crib, 
which  was  on  the  laud  of  the  plaintiff's  lessor,  and  which,  hav- 
ing an  outer  door,  was  kept  locked  by  the  defendant,  who  was 
requested  but  refused  to  remove  the  building  to  his  own  side  of 


EJECTMENT,— Vl.-VII.-VHi:  383 

the  line;  it  was  held,  that  if  the  defendant,  at  the  time  when  the 
suit  was  commenced,  kept  the  crib  locked,  it  was  a  sufficient 
possession  by  him  to  sustain  the  action   of  the  plaintiff's  lessor. 
I    [red.,  293. 

2.  A  i  ejectment  is  entitled  to  a  verdict,  if  he  can 
show  a  wrongful  possession  in  the  defei  ij  .  i  part,  no 
matter  how  small,  of  what  he  claims  in  i.      Gil- 

280. 

3.  Th  plain- 
tifl  cam                   •  without  showing  i               title  i          I  he  de- 

1  .       land  of  which  the  defendant  to  have 
Hipp  v.  Fon  -     ',  7  Jo 

4.  V.  ilaration  in  ejectment  in  ole  of  a 
tract  of  Ian  I,  and  the  evide  n  ait  was 

of.the  plaintifl  of  .ill  but 

I  in  the  possession  to  which  the 

Id,  that  it  tiei  essary 

for  tin-  i  to  have  made  a  dis  :laimer,  in  order  to  prevent 

t  him  for  the  land  ou1  i  I  session. 

See  i  — Of  the  defence  and  herein  of  the  consent 

ride,  3-5-7-19-20-37.) 

VII.        SURVEY. 

1.  If  a  survey  be  returned,  and  a  new  one  moved  for,  the 
court  v  er  it,  unless  the  foi  to  be  imper- 

fect.    MiUerv.  White,  2  Hay.,  148,  - 

VIII.        OP    Tin;    TITLE    NECESSARY    TO    SUPPORT    THE    A 

1.  The  purchaser  of  the  lands  of  If.  E.  M  tider  a 
sale  bj   the                 ioners  of  eonfj  -  ated  pi  iperl  Mowed 

evidence  of  a  title  in  fee  simple,  tl     I  > 

..  under  a  deed  which   he  ha 
ister's  office  having  been  destroyed.      I.  ,     -   v 
Smith,  Mar.,  21.  id.) 

2.  Lai  ted  in  1728  to  one  who  !7,'>0, 
and  B  so                                      nt  io  England.     In  1'. 

on  the  Ian  i  and  lived  on  it  thirtee  n 

:  o  D  who  never  took  possession,  made  claim  or 

brought  suit  until  1787.     The  sou  of  Ca  rson 

who  assigned  to  the  defendant,  who  obtain  before 

the  suit  was  brought.     Under  these  circumstaii  i  as  held, 

that  the  plaintiff's  jus  possessionis  was  lost.  Shaw,  1 

Hay.,  5,  (8.)     S.  <'..  Mar.  34,  (24.) 

o.  Iii  the  case  of  lapped  patents,  where  both  parties  are  in 
possession  of  their  respective  tracts,  but  neither  actually  settled 


384  EJECTMENT.— VIII. 

on  the  lapped  part,  the  oldest  grantee  will  be  in  possession  -oi 
that  part.      Wright  v  Bogan,  1  Hay.,  176,  (203.) 

4.  When  one  lias  obtained  a  grant  for  land,  he  thereby  gains 
a  constructive  possession,  whicn    continues    until    an    adverse 

ion  commences-;  and  that  adverse  possession  must  be  con- 
tinued seven   years   before  the  right  of  possession  of  the  first 
e  is  lost.'    Slade  v  Smith,  1  Hay.,  248,  (286.) 

5.  A  bare  right  of  entry  cannoi  be  assi  ned,  so  ■  enabli 
the  a  i  ;  ■:  i  to  on  his  demis  ;.  Tbi  '.  S.  I'.. 
Farrar  i,  (7.)  Gob)  \  'rid,  123, 
(74.)     Dennis  v  Fan,  1  Murph.,  138. 

6.  Cattle  ranging  on  land  is  not  s  i  c  ilcu- 
lated  to  givi   notice  to  the  adverse  claimant,  that  his 

cupied  and  claimed  l>\  a  :  therefore  not  such  a  | 

sion  as  will  give  a  title  ta  An- 

drewi  ' 

7.  A  single  act  □  i    ton  will  not  do  to  give  a 
under  the  statute,   bul  sion  must    I  i    as  and 
continued  for  seven  years,  without  entry,  claim  on  the 
other  side.     Ibid. 

8.  Articles  under  seal,  for  the  conveyance  of  land  upon  the 
payment  of  the  prio  ,  v  ill  no1  create  such  a  trust  on  the  part  of 
the  plaintiff  (at  leasl  before  the  money  is  paid)  as  to  prevent  Ins 
recovery  in  ejectment  from  the  person  to  whom  the  articles  were 
mad  ■  '  .   I   I  [ay.,  331,  (380.) 

9.  A  claimant,  by  esc  ■.'•"  main- 
tain ejectment,      i               m       Jinston,  1  Hay.,  373,  (429.) 

10.  An  alien  cannot   maintain  ejectment.      Barges  v.  fl 
Hay.,  tl  5,  (558.) 

11.  The  pi  one,  who  enters  under  a  contract  of  pur- 
chase, is  not  ad1  the  vendor.  Young  v.  Erw in,  2  Hay., 
9,(157.) 

12.  A  title  undei  L  gives  i  d  ive  possi  s- 
■sion,  which  preserves  hi  Lit  of  entry,  until  it  is  lost  by  a  con- 
tinued adveri  n- seven  years  under  color  of  title. 
Ibid.  .    ' 

13.  The  possession,  which  giv<  s  title  under  the  statute  of  lim- 
Lti  tions,  is  one  under  color  of  title,  taken  by  a  man  himself,  his 
servants,  slaves  or  tenants,  and  by  him  or  them  continued  unin- 
terruptedly for  seven  years.      Grant  v.    Winbourne,   2   Hay.,  56, 


14.  Whether  getting  wood  upon  land  to  make  tar  is  a  pos 
session  under  the  statute  of  limitations,  quaere.  Anonymous,  - 
Hay.,  16,  (262.) 

15.  Where  two  patents,  or  deeds,  lap,  and  neither  party  is  set- 


EJECTMENT.— VIII.  385 

tied  on  the  lapped  part,  the  possession  is  in  the  oldest  patentee 
or  bagainee;  but  if  the  junior  be  actually  settled  upon  the 
lapped  part,  the  possession  will  be  in  him,  and  when  continued 
for  seven  years  will  bar  the  other  party.  Bryant  v.  Allen,  2 
Hay.,  74,  (241,)  S.  C.  Tay.,  103,  (59.)  Barrets  v.  Turner,  2 
Hay.,  113,  (273,)  S.  < '.  Tay-  ]1--  (66.)  Slade  v.  Griffin,  2 
Hay..  178,  (373.)     Sawyer  v. ,  Ibid,  235,  (416.) 

16.  If  a  smaller  patent  be  Laid  on  land  included  in  a  gri 
and  tin-  grantee  of  the  smaller  pari   take  possession,  and  be  apt 
interrupted  but  continue  possession  for      vi   i  years,  though  pos- 
session of  the  larger  patent  betaken   in  other  parts,  the 

sion  of  the  smaller  patentee  will  give  him  a  title.  Swain  v.  BeU, 
2  Hay..  17'.).  (374.) 

17.  if  the  husband  sell  his  wife's  land  in  fee,  the  possession 
of- the.  purchaser  is  no1  adverse  until  after  the  "husband's  death. 
jjloss  v.  ,  2  Hay..  223,  (397.) 

\8.  Possession  of  a  part  of  a  tract  of  land  is  possession  of  the 
whole,  both  parties  having  color  of  title  Lariin  v.  Miller,  2 
Hay.,' 345,  (528.) 

19.  If  A  have  a  deed  for  om  I  ra  !-  :  o  a  deed  for  an  ajoining 
tract,  and  they  are  both  comprel  i  flier,  and  A  is  in 
possession  of  one,  and  not  of  the  ,  the  title  to  the 
other  will  not  be  aided  by  the  statute  i      limitations.     Hoc 

izie,   2   Hay.,    365,    (559,)   S.    P.    Steele  v.   Batch, 
381,  (597.) 

20.  .V  person,  who  claims  under  a  pure!  i,  sheriff 
mri  I  prove  a  title  in  him,  agai     I                        execution  i 

v.  Hunt  -'.  Conf.  Rep.,       '  .) 

[n  ejectment,  if  the  lessor  c!  under  a  grant  de- 

ig  the  lands  as  confisi .  b  ty  of  a  partic- 

rson,  he  must  show  that  the  lands  had  been  confiscated,  to 

issuing  oftbegr.  ut.     Hardy  v.  Jot   s,  1  Car.  L.  1L 

I  144,)  S.  C,  2  Murph.,  52. 

22.  A  deed  executed  I  :    n  r  is  in  ] 

v.  Ashe,  2 

Hay.  L03,  (264,)  S.  P.  Gibson  v.  Shearer,  1  Murph.,  114. 

_  ■.   A  constructive  possession  of  lauds,  under  color  of  title  for 

-one  years,  under  known  and  visible  boundaries  or  lines. 

I  bar  the   right  of  entry   under   I1'"  Stati  ;  nor  will   the 

ssion  for  twenty-one  yeare  oJ  diff  i   u1   parts  of  the 

lands,  covered  by  color  of  title,  bypurchasers  from  him  to  whom 

th     'olor  of  title  was  made,  avail  him  as  to  those  lands  not  sol.  I 

■a        tually  possessed,  for  they  are  distinct  tracts  held  by  dif- 

persons    in    different    rights.       Clinton    v.    Herring,    1 

Murph.,  414. 

24.   If  the  owner  of  land  contract  to  sell  it  to  one  who  pays 
lie-  purchase  money,  but  before  he  gets  a  conveyance  the  owner 
sells  and  conveys  it,  to  another  person,  having  notice  of  the  pre- 
'25 


386  EJECTMENT.— VIII. 

vious  contract  and  payment,  the  person  having  the  first  contract 
cannot  maintain  an  ejectment  at  law,  his  only  remedy  being  in 
equity.     Dunstan  v,  Smithvrick,  2  Murph.,  59. 

25.  In  ejectment,  the  purchaser  at  sheriff's  sale  is  bound  to 
show  the  judgment  on  which  the  execution  issued.  And  where 
lie  purchases  under  an  order  of  sale,  made  by  the  county  court, 
upon  a  constable's  return,  he  must  show  the  judgment  recov- 
ered  before  the  justice  of  the  peace.  Hamilton  v.  Adams,  2 
Murph.,  161. 

rid.  Constructive  possession  esastsonlj  when  the  claimant  has 
title  to  the  land,  and  there  is  no  one  in  actual  possession,  claim- 
ing under  an  adverse  title.  McMillan  v.  Hafley,  -  Car.  L.  K., 
89*  (186.) 

21.  It'  one  convey  lands  with  warranty,  and  his  grantge  also 
convey  with  warranty,  and  the  last  purchaser  be  evicted  and  his 
grantor  pay  him  the  consideration  money,  and  then  the  first 
grantor  pay,  he  will  not  thereby  be  enabled  to  maintain  eject- 
ment for  the  land,  for  the  payment  of  damages  on  the  warranty 
cannot  amount  to  a  reconveyance  of  the  land.  Claytonv.  Marh- 
ham,  2  Car.  L.  LI,  115,  (213.) 

28.  It  is  a  fixed  rule  in  ejectment,  that  the  possession  of  a 
plaintiff,  under  color  of  title,  must  be  a  continued  one.  for  seven 
years,  to  enable  him  to  recover.  Jows  v.  Ridley,  2  Car  L.  H., 
397,  (280.) 

29.  Where  a  mortgagor  is  permitted  to  remain  in  possession 
of  the  hmd.  and,  after  the  mortgage  is  forfeited,  he  sells  to 
another  person  without  notice,  the  alienee  or  his  vendee,  by  re- 
maining in  possession  seven  years,  will  acquire  title.  Baber  v. 
/<>,  ns,  2  Car.  I,  R.,  614,  (417.) 

30.  A  color  of  title,  without  seven  years  continued  possession, 
will  not  entitle  the  plaintiff  in  ejectment  to  recover,  even 
against  an  intruder.  Shepard  v.  Shepard,  N.  C.  Term  R., 
l'o,s.  (545.) 

31.  Possession  if  a  part  if  a  tract  of  land  is  possession  of  the 
whole  claimed  by  a  deed,  when  there  is  no  adverse  possession, 
nor  superior  title  Fitzrandolph  v.  Norman,  N.  C.  Term,  Rep., 
127.  (564.) 

32.  Whereone,  mants  in  common  of  a  tract  of  land, 
conveys  the  whole  tract,  and  his  alienee  and  those  claiming 
under  him  remain  in  poi  e  sion  for  seven  years,  (the  adverse 
claimants  not  being  uttder  any  disability,  )they  will  acquire  a  com- 
plete title  by  the  statute  of  limits  ions.  Burtonv.  Murphy,  2 
Murph.,  339^  S.  c.  X.  ('.  reran  !>..  259,  (684.) 

32.  A  possession  cannoi  be  set  up  as  adver  se  so  as  to  complete 
a  title,  when  it  is  common  to  both  parties,  as  where  they  claim  by 
descent  from  the  same  ancestor.  Midford  v.  Hardison,  ■'> 
Murph.,  164. 

34.   In  ejectment  for   lands  purchased  under  execution,   the 


EJECTMENT.—  VIII.  387 

plaintiff,  as  against  the  defendant  in  the  execution,  need  show- 
only,  1st,  a  judgment,  2nd,  an  execution,  and' 3rd,  the  sheriff's 
deed.  If,  therefore,  in  the  sheriff's  deed  there  be  a  mistake  in 
reciting  the  judgment  or  the  execution,  or  the  return  endorsed 
on  the  execution,  or  the  day  of  sale,  it  is  immaterial,  if  it  appear 
that  there  was  a  judgment,  and  an  execution  issuing  thereon, 
giving  the  sheriff  authority  to  sell.  Thompson  v.  Hodqes,  3 
Murph.,  546:  S.  P.,  Button  v.  Dew,  Ibid,  260.  Smith  v.  Kelly, 
Ibid,  507. 

35.  Where  two  patents  cover  in  part  the  same  land,  and  each 
grantee  is  settled  on  his  own  land,  outside  of  the  interference, 
the  title  will  be  in  the  person  having  the  elder  patent;  but  if 
the  junior  patentee  has  been  in  the  actual  possession  of  the  in- 
terference, or  lapped  put.  for  seyen  years,  he  will  have  thereby 
acquired  a  good  title  under  the  statute  of  limitations  to  that 
part.     Orbison  v.  Morrison,  I  Hawks,  467. 

.">ii.  Tenants  in  common  "!'  land  may  recover  upon  a  joint  de- 
mise.    Nixon  v.  Potts,  1  Hawks,  469. 

.">7.  Where  A  and  1!  are  in  possession  of  the  same  tract  of  land 
adversely  to  each  other,  and  ( ',  who  has  both  possession  and  title, 
executes  a  deed  tor  the  land  to  A,  the  law  will  adjudge  his  pos- 
sos^ion  to  be  the  rightful  on*  ;  and  the  acknowledgment  of  C,  at 
i  i.  ti  ae  ofhisi  xeetiting  liis  deed  to  A,  that  B  had  tin-  posses- 
sion, shall  not  be  sufficient  to  destroy  the  title  conveyed  by  his 
d 1  to  A.     <iirii:,n\.  Stokes,  2  Hawks,  235. 

H<s.  Possession,  by  one  having  only  an  equity  iu  land,  is  con- 
sidered as  the  possession  of  him  who  created  that  equity.  Hence, 
where  a  vendee,  under  articles  lor  a  purchase,  was  in  possession 
claiming  for  himself,  Ids  possession  enured  to  ripen  the  defec- 
tive colorable  title  of  the  vendor,  and  a  subsequent  purchaser  of 
tin'  legal  estate  of  the  vendor  eaii  veeover  in  ejectment,  against 
tlic  vendee.     Rhodes  v.  Brown,  2  Dev.,  195. 

.".'.I.  The  title  must  be  truly  stated  in  the  declaration;  and 
a  joint  demise  can  only  be  supported  by  showing  a  title,  in  each 
of  the  lessors  of  the  plaintiff,  to  demise  the  whole.  If  one  of 
the  lessors  have  no  title,  the  plaintiff  must  fail.  Hoyle  v.  Stowe, 
2  Dev.,  318. 

40.  Tenants  in  common    may  recover  on  a  joint  demise,  be- 

.i  lease  for  years  is  but  a  contract  for  the  possession  of  the 
hue!,  and  Me-  possession  is  joint.     Ibid. 

41.  Where  the  lessor  of  the  plaintiff  claims  title  under  a  sum- 
mary judgment,  entered  up  in  his  or  her  favor,  he  or  she  must 
prove  that  the  judgment  was  regularly  obtained;  therefore 
where'  the  mother  of  a  bastard  obtained  a  judgment  against  the 
putative  father,  under  the  acts  of  1741  and  1799,  and  purchased 
his  land  tinder  an  execution  thereon,  it  was  held,  in  an  ejectment 
for  the  land,  that  she  must  prove  that  the  father  had  notice  of 
her  intention  to  move  for  judgment,  or  that  the  sheriff  had  re- 


888  EJECTMENT.— VIII. 

turned  that  he  was  not  to  be  found.     MaPherson  v.  McCoy,  2 
De'v.,  391.     (See  Rev.  Code,  ch.  12  sec.  1  and  7.) 

12.  In  ejectment  a  continued  possession  of  seven  full  years, 
with  color  of  title,  is  absolutely  m  eessary  to  bar  the  right  of 
entry.  The  possession  need  not  be  continued  from  day  to  day 
without  interruption ;  but  it  must  be  a  continued  possession,  con- 
sistent with  the  usages  of  agriculture.  Therefore,  where  a  crop 
was  planted  at  the  beginning  of  the  seventh  year,  and  at  mid- 
summer possession  was  abandoned  and  never  resumed,  it  was 
mid,  that  the  right  of  entry  was  not  barred.  Blair  v.  Miller,  2 
Dev.,  407. 

43.  '  >ne  having  title  to  land,  part  of  which  is  under  cultiva- 
tion and  part  in  wo6ds  unenclosed,  is  taken  to  be  in  actual 
possession  of  the  whole  tract.     Grist  v.  Hodges,  3  Dev.,  L98. 

44.  An  executory  devisfee  has  no  ripht  of  entry,  until  the  con- 
tingency happens,  upon  which  his  estate  Vests.     Soui  i  \i  'and  v. 

3  Dev.,  394. 

45.  Where  A  has  two  coterminous  grants  and  B  anothei, 
which  covi  n  a  part  of  one  of  them  and  is  the  oldest,  and  a  fence 
of  A,  upon  a  tract  to  which  he  has  title,  runs  very  m 

of  the  two  tracts,   and  encloses  a  small  portion  of   B's  land, 
which  was  also  coveri  d  by  A's  grant,  if  was  lielfi,  B  not  being  in 
possession;  1st,  that  aii  adverse  possession  of- seven 
A  a  title  to  all  the  land   within   his  enclosure;  2ndly|  th; 
end  isure  being  of  a  pari  so  small  that  B  might  reasbnaj  ly  con- 
clude it  was  a  mere  mistake  in  running  the  fence   <T  was  not  of 
itself,  as  to  liini,  an  entry  upon  the  land  to  which  he  hn 
and  was  not  an  ouster  of  him  beyond  the  enclosure;  ordly,  that 
alihoe,  timber  and  overflowing  the  land  of  BbyA 

were  not   in  themselves  ousters  ofj  B,   so  as  to  constiti  i 

ion  by  V,  yet  these  facts,  taken  in  connection 
with  the  fence  running  upon  his  land,  were  proper  to  be  left  to 
the  jury,  as  testimony  from  which  they  might  infer  an  ouster. 
Green  v.  Harmon,  4  Dev.,  158. 

46.  Overflowing  land,  by  st<  ippinga  stream  below,  is  not  a  pos- 
session,  which  will  perfects  defective  paper  title.  Neither  is 
cutting  timber;  for  there-  must  be  some  act,  which  is  equivalent 
to  residence  or  cultivation;  and  making  turpentine  on  land  is 
probablj  a  sufficient  possession  for  that  purpose.     Ibid. 

47.  A  person  entering  into  the  possession  of  lands,  under  a 
voluntary  parol  agreement  to  convey,  no  rent  being  reserved,  is 
not  a  tenant  from  year  to  year,  and  is  not  entitled  to  a  notice  to 
quit.  But  there  must  be  some  act,  as  a  demand  of  possession 
By  one  party,  or  a  refusal  to  deliver  by  the  other,  to  convert  the 
defendant  into  a,  trespasser,  before  an  ejectment  can  be  main- 
tained against  him.     Carson  v.  Baker,  4  Dev.,  220. 

48.  If  an  actual  ouster  be  made  by  one  tenant  in  common  of 
his  co-tenant,  (and  the  sole  enjoyment  by  one  for  many  years 


EJECTMENT.—  VIII.  389 

without  claim  by  another,  who  is  under  no  disability,  is  evidence 
of  such  ouster,)  there  is  no  longer  a  common  possession,  and  the 
remedy  is  not  by  petition  for  partition,  but  by  ejectment. 
Thomas  v.  Garvan,  4  Dev.,  223. 

4H.  Under  the  act  of  1791,  a  possession  of  twenty-one  years 
with  color  of  title,  under  known  and  visible  boundaries,  consti- 
tutes a  valid  title,  and  no  evidence,  tending  to  rebut  the  pre- 
sumption thai  a  grant  had  in  fact  issued,  can  defeat  such  title. 
Graham  v.  Houston,  t  Dev.  232. 

50.  Possession  of  a  whole  of  a  tract  of  land,  in  virtue  of  the 
actual  possession  of  a  part,  holds  only  when  no  other  person  is 
in  the  actual  possession  of  any  part,  for  as  soon  as  another 
takes  actual  possession  of  part,  either  with  or  without  a  paper 
title,  the  plaintiff  loses  possession  of  that  part.     Ibid. 

51.  Under  that  part  of  the  revemae  law,  which  directs  the 
sheriff  in  certain  cases  to  bid  off  land  for  the  governor,  he  can- 
not strike  off  less  than  the  who]'-;  if  he  do.  the  sale  will  be  void. 
being  beyond  his  restricted  power.  Nor  can  be  vest  the  title  in 
the  State  after  the  period  for  making  the  deed,  prescribed  by  that 
act,  has  elapsed;  therefore,  a  grantee  from  the  State,  claiming 
under  such  a  sale  made  h\  th<  sheriff,  has  no  title,  and  cannot 
mafnti  at.     Avery  v.  Bose,  4  Dev.,  549. 

52.  The  cutting  of  grass  in  i ladow  for  seven  years  succes- 
sively, stacking  i1  on  the  land,  a*nd  fencing  the  sfc  :  ■  such  a 
possession,  as  will,  with  color  of  title,  her  the  entry  of  one  claim- 
ing adversely.     Burton  v.  Carruth,  1  Dev.  and  Bat,  2. 

53.  Eji  ciuK-nt  may  be  sustained,  although  it  appear  that  the 
less. a-  -  i  tiff  and  the  defendant  are  both  living  on  dif- 
ferent pafts  of  the  tract  "f  land  in  dispute,  claiming  adversely 
to  each  other.     Dobbins  v.  Stephens,  1  Dev.  and  Bat.,  5. 

fit.   Although  the1  possession  of  a  part  of  a  tract  of  land  is  in 
law  the   possession    qf    the  whole,   when    there   is   no    adverse 
possession,   ye1    if  the    land    be   composed   of  different 
held   under   different    grants,    and   described    in   the   deed    to 
the  person  in  possession  by  different  boundaries,  an  actual  pos- 
■  upon  one  does  not  in  law  extend  to  the  other;  and  if 
I  y  an  elder  grant,  the  statute  of  limitations  per- 
be  title  of  that  only,  on  which  there  was  an  actual  posses- 
sion,    ('arson  v.  Burnett,  1  Dev.  and  Bat.,  546. 

55.  If  part  of  a  tract  of  land  be  covered  by  two  titles,  and  lie, 
who  has  the  b(  tter  title,  be  in  possession  of  another  part  of  it. 
he  has  in  law  the  possession  of  the  whole,  unless  the  person 
holding  under  the  other  title  has  actual  possession  of  the  inter- 
ference. But,  if  the  person  having  that  better  title  is  not  in  the 
actual  possession  of  any  part  of  the  land,  and  the  owner  of  the 
other  is  in  possession  outside  of  the  interference,  he  has  in  law 
possession  of  lie-  interference.     Ibid. 

56.  In  ejectment  for  land  purchased  at  a  sheriff's  sale,  under 
an  order  of  sale  made  by  the  county  court,  upon  a  return  of  a 


390  EJECTMENT.— VIII. 

constable  that  he  had  levied  on  the  lands  of  the  defendant,  the 
purchaser  must  show  the  justice's  judgment,  returned  to  court 
according  to  law;  and  an  entry  on  the  trial  docket  of  the  court, 
at  the  foot  of  the  case,  "order  of  sale,"  is  not  such  a  judgment 
as  the  law  requires  to  be  shown.  Inc/ram  v.  Kirbu,  2  f)ev.  and 
Bat,  21. 

57.  Neither  is  such  an  entry,  together  with  the  testimony  of 
the  clerk,  that  alter  diligent  search  he  had  been  unable  to  find 
the  original  papers  in  the  suit,  sufficient  evidence  of  the  loss  of 
the  justice's  judgment,  if  evidence  of  such  Loss  were  admissible 
Ibid. 

58.  In   an  action  of   ejectment   by  one   tenant    in    common 

against  another,  proof  of  a  demand  to  be  let  into  | ssion  by 

the  lessor  of  the  plaintiff,  subsequent  to  the  demise  laid  in  his 
declaration,  and  a  refusal  by  the  defendant  denying  the  plaintiff"' a 
right,  is  evidence  li-->in  which  the  jury  may  infer  a  previous 
ouster,  or  adverse  possession  at  (he  time  of  the  demise  laid  in 
the  declaration.     Hargrove  v.  Powell,  2  Dev.  and  Bat.,  97. 

59.  in  ejectmenl  I  hie  defendant,  who  has  executed  to  the  I 

of  the  plaintiff  a  deed  for  the  land  in  controversy,  to  which 
femes  covirls  were  parties,  but  which  had  not  been  regularly 
proved  as  to  them,  cannot  deny  the  plaintiff's  right  to  recover. 
Matthews  v.  Matthews,  '2  Ired.,  217. 

60.  Ejectment  cannol  he  maintained  in  this  State  upon  a  naked 
;  ion  once  had,  where  tin  re  is  no  presumption  of  a  con- 
veyance h1'  the  legal  title,  but  it  appears  affirmatively  to  be 
in- another  person.     Duncan  v.  Duncan,  3  [red.,  31*7. 

til.  In  ejectment  the  purchaser,  at  an  execution  sale,  need 
only  show,  as  against  the  defendant  in  the  execution,  the  judg- 
ment, execution,  sale  and  sheriff's  daed.     Ibid. 

62.  A  possession  of  twenty -one  years,  under  colorable  title  and 
under  known  and  visible  boundaries,  will  confer  a  good  title  and 
bar  the  entry  of  any  person  claiming  under  the  State,  without 
any  reference  to  the  period  at  which  the  person,  so  entering  on 
the  previous  possessor,  acquired  his  right  or  claim  tinder  the 
State.     Pave  r.  Statov,  1  Ired.  32. 

63.  The  word  "entry"  in  the  act  Rev.  Stat.,  ch.  65,  sec.  2, 
means  an  actual  entry  into  the  land,  as  the  exercise  of  a  right 
under  a  valid  legal  title  derived  from  the  State,  and  nut  an  entry 
in  a  public  office, as  of  vacant  and  unappropriated  land,  towhich 
the  party  intends i  to  perfect  a  title.  Ibid.  (See  Revised  Code, 
.ch.  65,  sec.  2.) 

64.  A  plaintiff,  in  ejectment,  can  only  recover  upon  the 
strength  of  his  own  title,  as  being  good  against  all  the  world,  or 
as  good  against  the  defendant  by  estoppel.  Clark  v.  Digys,  6 
Ired.,  159. 

65.  When  land  is  conveyed  in  fee  to  a  person  upon  certain 
trusts  mentioned  in  the  deed,  the  trustee  can  convey, a  fegr«?  .title 


EJECTMENT.— VIII.  391 

to  the  property,  so  as  to  enable  the  alienee  to  maintain  an  action 
of  ejectment.  The  question,  as  to  his  equitable  right  to  convey 
for  a  different  purpose  from  that  authorized  by  the  trust,  is  one 
of  purely  equitable  jurisdiction,  and  cannot  be  entertained  in  a 
court  of  law.     Canoyv.  Troutman,  7  [red.,  155. 

lili.  Under  the  acl  of  1848,  ch,  5;i,  on  the  trial  of  an  ejectroentj 
brought  by  a  purchaser  at  an  execution  sale  against  the  dei'end- 
ant  in  the  execution,  or  one  bound  by  its  f,  stt .  qo  judgment  need 
be  shown;  a1  all  events,  unless  the  plaintiff  be  the  purchaser  in 
ihe  execution.  Rutlterford  v.  Raburn,  10  Ired,  144.  (See  Rev 
( iode,  ill.  4  1,  see.  l;;. ) 

t>7.  In  cases  where  it  is  necessary  to  produce  the  judgment, 
as  where  the  opposite  party  claims  under  a  prior  conveyance,  a 
variance  between  the  judgment  and  the  execution  will  not  avoid 
the  proceedings  under  the  execution,  provided  enough  appears 
to  enable  the  court  to  see,  with  reasonable  certainty,  thai  in  fact 
the  execution  was  issued  and  intended  to  enforce  the  particular 
judgment.     Ibid. 

68.  Where  the  note,  on  which  the  judgm  ut  was  obtained, 
was  payal  le  to  the  firm  of  "Lester,  Kilgore  <S  Bates,"  and  the 
judgment  was  in  the  names  of  "Philip  Lester,  Josiah  Kilgore 
and  William  Bates,"  and  the  execution  was  in  the  name  of 
"P.  Lester.  Kilgore  and  Bates,"  and  for  the  same  amount  as  the 
judgment,  it  was  held,  thatthe  variance  in  the  names  came  with. 
in  the  mischief  intended  to  be  remedied  by  the  act  of  1848,  and 
did  not  vitiate  the  execution.     Ibid. 

('>'.).  Where  the  lessor  of  the  plaintiff  in  ejectment  claims  as 
purchaser  at  an  execution  side,,  made  undi  r  a  judgment  in 
which  he  himself  was  plaintiff,  be  must  show  the  judgment  as 
well  as  th  execution;  and  it' the  sale  was  by  execution  under  a 
decree  in  equity,  he  must  not  only  show  the  decree,  hut  also  the 
bill  and  answer,  and  so  much  of  the  pleadings  and  orders,  as 
will  show  that  ih"  decree  was  pronounced  in  a  cause  properly 
constituted  between  the  parties.  Lyerly  v.  Wheeler,  11  Ired.. 
288. 

60.  Where  A  had  leased  land  to  P>,  in  the  year  1848,  and 
during  that  year  while  B  was  in  possession  under  the  lease,  A 
executed  to  C  a  deed,  purporting  to  convey  to  him  the  fee  sim- 
ple, and  thereupon  C,  on  the  25th  of  Decembi  r,  1848,  commen- 
ced an  action  oi  ejectment  against  B,  it  teas  held,  that  the  ac- 
tion would  not  lie,  because  at  the  date  of  the  demise,  C  had  not 
the  righl  of  entry.     lJrir,  v.  Osborne,  12  Ired.,  26. 

71.  A  purchaser  of  land  is  a  privy  in  estate  with  the  bargain- 
or, and  has  the  right,  where  necessary,  to  uso  the  name  of  the 
bargainor  to  effect  a  recovery  in  ejectment,  and  alse  to  take  pos- 
session in  his  name.     Posten  v.  Henry,  12  Ired.,  339. 

72.  If  at  the  time  when  the  lessor  purchased  and  took  his  con- 
veyance., the  defendant  was  in   possession  of  t)ie  premises  de. 


392  EJECTMENT— VIII. 

scribed  in  the  declaration,  claiming  them  adversely,  the  plaintiff 
cannot  recover.     Mercer  v.  Ealstead,  Busb.  311. 

73.  In  ejectment,  the  plaintiff's  lessor  must  recover,  if  at  all, 
upon  the  strength  ofhis  own  legal  title,  either  as  being  in  itself 
g 1  against  all  the  world,  or  good  against  the  defendant  by  es- 
toppel.    Taylor  v,  Gooch,  3  Jones,  467. 

74.  A  possession  of  seven  years,  under  color  of  title,  gives  a 
good  title  against  all  the  world,  except  the  State,  and  a  subse- 
quent possession  of  thirty  years  maks  a  good  the  title  against  the 
State,  although  a  large  part  of  this  thirty  years  possession  was 
adverse  to  the  person  suing,  who  will  not  be  entitled  to  the  be- 
nefit of  it,  as  against  the  Slate,  if  her  right  is  saved  from  the  ef- 
fect of  it  as  to  the  possessor,  by  the  accumulated  disabilities  of 
infancy  and  coverture.     Ibid. 

75.  An  interval  of  "tweh  e  months  or  thereabouts,"  in  the  ac- 
tual,occupation  of  land,  is  fatal  to  a  title  based  upon  an  alleged 
adverse  possession  of  seven  years  under  color  of  title.  Ward  v. 
Herrin,  4  Jones.  23. 

76.  Where  the  only  question  in  an  action  of  ejectment  was, 
whether  there  was  an  o  title  superior  to  that  of  the 
plaintiff,  it  was  heldto  be  immaterial  to  consider  whether  the 
defendant  could  connect  himself  with  such  outstanding  title  or 
not.     Gleggv.  Field*,  7  Jones,  37. 

77.  An  adverse  possession  of  seven  years  under  color  of  title, 
against  a  trustee,  will  confi  o  ood  title  not  only  against  him 
but  against  the  cestui  que  trust,  though  she  may  be  an  infant  and 
under  coverture.      Wellborn  v.  Finley,  7  Jones,  228. 

78.  Where  A  mortgagi  d  his  land  for  a  term  of  years,  and  then 
assigned  the  equity  of  redemption,  and  the  mortgagee  permitted 
an  adverse  claim,  under  a  color  of  title,  to  ripen  into  a  good  title 
by  adverse  possession,  it  was  held  thai  the  reversioner,  on  the  pay- 
ment of  the  purchase  money  and  a  reconveyance  of  the  term, 
was  yet  barred  ofhis  entry  until  alter  the  expiration  of  the 
ten  a.      Ibid,. 

71».  Where  a  bill  was  hied  to  settle  all  litigation  concerning 
the  titles  to  several  tract  i  of  land  bhat  ha<  confused  by 

the  non-payment  of  mortgage  money,  and  adverse  claims  under 
junior  grants,  and   one  ol  is  was  withdrawn  from  the 

litigation,  it  was  held  that  n  d  'cr<  >  .  as  to  the  remaining  tracts  in 
controversy,  did  not  prevent  an  adverse  possession  of  the  tract 
withdrawn  from  the  suit  from  ripening  into  a  good  title  as  to 
that.     Ibid. 

80.  The  obligee,  in  a  bond  to  make  title  to  land,  who  goes 
into  possession  under  a  parol  agreement,  that  he  is  to  occupy  the 
premises  until  the  money  becomes  due,  is  but  a  tenant  at  will  to 
the  obligor,  and  cannot  maintain  ejectment  or  trespass  against, 
the  latter,  or  one  taking  title  from  him.  Hichardson  v.  Tliorntcm, 
7  Jones,  458. 


EJECTMENT.— Vm.-IX  393 

See  (Alien — When  an  alien  can,  or  cannot  sue  in  this  State,  3.) 
(Estoppel— By  1  teed,  2(5-33.)  (Estoppel— Rv  matter  other  t  dan 
by  recorder  deed,  2-16-24-25-33-34-36-37-38-39-40-42.)  (  Ex- 
execution — Purchaser  at  an  execution  sale,  42-43-44.)  (Mort- 
gage, 11-23.)     (Tenants  in  common,  7-9-10-18-20-26-27  28.) 

XT.   OF  THE  DEFENCE,  .VXD  HEREIN  OF  THE  CONSENT  BCLE. 

1.  The  defendant  in  an  ejectment  will  not  be  allowed  to  defend 
only  as  to  so  much  as  the  plaintiff  can  prove  him  to  be  in  pus- 
session  of.     Carter  v.  Branch,  lHay,  135,  (155.) 

2.  If  the  defendant  defend  for  that  part  of  the  land,  of  which 
he  has  been  in  possession  for  seven  years,  and  also  of  a  part  ad- 
joining, of  which  the  plaintiff  has  had  possession,,  the  whole 
defended  for  shall  be  deemed  one  tract,  of  which,  as  both  have 

..had  possession,  the   legal  possession   shall  be  in   him  who  has 
title.    Oil.  by  Hay wood,    Symondsv.  Truebloodr2H&j.,  235,(417.) 

3.  In  all  ca  ,  itment,  whether  the  consent  rule  be  gen- 
era) or  special,  the  lessor  of  the  plaintiff  is  bound  to  prove  the 
defendant  in  poss  :ssk>ii  of  the  premises  he  seeks  to  recover.  Al~ 
hertson  v.  R  ding,  2  Murph.,  283,  S.  C.  1  Car.  L.  R.,  274,  (28.) 

4.  If  the  defendant  neither  claim  the  land,  nor  have  the  pos- 
session i,  ma;  enter  a  "disclaimer,  when  called  upon  to  plead; 
and  if  he  be  unable  to  decide  upon  a  view  of  the 

whether  he  is  in  possession  of  the  lands  claimed  by  the  plaintiff, 
he  may  enter  into  the  common  rule,  and  also  have  leave  to  dis- 
claim, if  he  should  afterwards  discover  upon  a  survey,  that  he 
ought  to  do  so.     Ibid. 

5.  The  general  rule  in  ejectment  is,  1jiat  the  defendant  must 
be  proved  to  be  in  actu  I  ;  ion,  notwithstanding  the  con- 
sent rule;  but  if  a  defendant,  before  suit  brought, admit  himself 

to  be  in  possession,  and    b< nes  a    defendant  to  try  the  title, 

proof  o;  rission  will  be  sufficient,  as  in  his  possession,  to 

sustain  the  action.     Mordecai  v.  Oliver,  I!  Hawks,  479. 

6.  Where  erne,  upon  his  own  motion,  procures  himself  to  be 

ndant  to  an  ejectment  bronghl  against  anotln  i 
offers  no  newplea  or  evidence  of  title  in  himself,  it  is  pw 
that  he  adopts  the  plea  and  defends  the  title  of  his  co-defeii 
Gforkam  v.  Bremon^  :'.  Dev.,  174 

7.  Although  the  ejectment  is  bound  to  prove  the 
person  he  makes  defendant  to  be  in  possession,  yet  where  one 
procures  himself  tube  made  defendant,  thte  plaintiff  is  not  bound 
to  prove  him  in  poss-  ssion;  and  even  it  such  voluntary  defend- 
ant be  proved  not  to.  be  in  possession,  still  the  plaintiff  will  be 
entitled  to  a  verdict.     Ibid. 

8.  When  a  landlord  makes  himself  defendant  to  protect  the 
possession  of  his  tenant*  the  plaintiff  cannot,  on  the  trial,  proves 


394  EJECTMENT.— IX. 

other  trespasses  committed  by  the  landlord  himself.  Carson  v. 
Burnett,  1  Dev.  and  Bat.,  546. 

9.  By  entering  into  the  general  consent  rule,  a  tenant  in  com- 
mon admits  the  ouster  of  his  companion.  Tt>  avoid  such  admis- 
sion where  there  has  been  no  actual  ouster,  he  must  apply  to  the 
court,  upon  affidavit,  for  leave  to  enter  into  a  special  rule,  re- 
quiring him  to  confess  lease  and  entry  at  the  trial,  but  not  ous- 
ter also;  and  this  special  rule  will  be  granted;  when  the  tenant 
does  not  dispute  his  co-tenant's  title;  but  when  lie  does  dispute 
Ids  co-tenant's  title,  he  shall  be  compelled  to  conf  ss  lease,  entry 
and  <iuster.  before  he  pleads.  Hargrove  v.  Powell,  -  Dev.  and 
Bat..  97. 

KJ.  One,  who  is  admitted  to  defend  in  an  action  of  ejectment 
with,  or  instead  of.  the  tenanl  in  possession,  cannot  setup  any 
defence  which  is  forbidden  to  the  tenant.  He  stands  with,  or 
in  place  of,  the  tenant,  and  is  entitled  to  his  rights,  and  subject 
to  his  disadvantages.  Hence,  it'  the  tenant  cannot  dispute  the 
title  of  the  lessor,  because  it  appears  that  he  occuped  the  Ian" 
as  his  tenant,  the  person  claiming  to  be  landlord  and  admitted 
to  defend  as  such,  will  also  be  precluded  from  disputing  such 
title.     Belfour  v.  Davis,  1  Dev.  and  Hat..  300. 

11.  Tlie  defendant  in  ejectment  is  generally  permitted  to  show 
a  better  title  than  that  of  the  lessor  of  the  plaintiff,  in  a  third 
person.  But  where  both  parties  claim  title  under  the  same  pea 
son,  it  is  not  competent  to  either,  as  such  claimants,  to  deny  that 
shcIi  person  had  title;  and  though  the  defendant,  in  such  i  age, 
may  still  show  that  he  had  in  himself'  a  K  tti  r  title  than  that  of 
the  plaintiffs  lessor,  yet  he  cannot  set  up  a  title  in  a  third  per- 
son.    Love  v.  Gates,  1  Dev.  and  Bat,  363. 

11.  Where,  in  action  of  ejectment,  the  def  ndant  has  entered 
a  disclaimer  as  In  a  part  of  the  land  described  in  tin.'  plaintiff's 
declaration,  that  partis  not  within  the  issue  submitted  to  the 
jury,  and  evidence  of  title  to  it  is  therefore  irrelevant.  Waugh 
v.  Andrews,  2  In  d..  75. 

13.  Where  a  demise  in  a  declaration  in  ejectmenl  was  laid  to 
be  on  the  1st  day  of  January,  and  the  service  of  the  declaration 
appeared  by  the  sheriff's  return,  to  have  been  on  the  31st  day  of 
December  preceding,  it  was  held  that,  alter  the  defendant  has 
confessed,  lease,  entry  and  ouster,  he  is  precluded  from  making 
any  objection  to  the  declaration  on  that  account.  Fuller  v, 
Wadsivorth,  2  Ired.,  263. 

14.  When  the  plaintiff  declares  upon  the  same  title,  againsl_ 
persons  in  possession  of  different  parcels  of  land,  the  defendants 
may  defend  separately,  each  for  the  part  in  his  own  possession, 
or,  if  they  defend  jointly,  each  defendant  may  require  that  the 
jury  shall  find  him  separately  quilty  as  to  that  part  of  the 
premises  in  his  separate  possession,  and  not  guilty  as  to  the 
other  part,  so  as  to  confine  the  judgment,  and  also  the  action  for 


EJECTMENT.— IX.  395 

me«  profits,  against  each  defendant,  to  the  parcel  possessed  by 
turn.     Love  v.   Wilboum,  5  lred.,  344. 

15.  A  person,  who  was  in  apparent  possession  of  a  tract  of 
land,  when  it  was  sold  by  the  sheriff  under  an  execution  against 
him,  and  in  like  possession  when  an  action  of  ejectment  was 

•brought  against  him,  cannot,  after  entering  a  defence  to  the  ac- 
tion, be  permitted  to  allege  that  others,  who  were  also  in  posses- 
sion, had  both  the  title  and  the  sole  possession,  [f  he  meant 
to  disavow  any  possession  in  himself,  he  should  not  have  en- 
tered any  defi  nee  to  the  action.      Thomas  v.  Orrell,  '<  lred.,  569. 

16.  The  landlord  has  a  right  to  be  made  defi  ndaut  in  an 
action  of  ejectment,  in  which  the  declaration  has  been  si  rved  on 
his  tenant  in  p  issession.  But  no  other  p  a  right  to  be 
so  made  a  defendant,  without  the  consenl  of  the  plaintiff;  and, 
if  the  plaintiff  consent,  the  person  thus  made  defendant  must 
not  only  enter  into  a  common  rule,  but  musl  also  admit  that  he 
was  in  actual  possession  at  the  time  sdee  of  the  decla- 
ration.     Wise  v.   Wheeler.  6  lred.,  196. 

17.  When  a  new  defendant  is  thus  substituted,  the  declara- 
tions of  the  tenant,  on  whom  the  declaration  in  ejectment  was 
served,  cannot  be  given  in  evidence  against  him.      i 

18.  In  an  action  of  ejectment,  when  the  tenant  in  possession 
makes  default,  and  another  i«  let  in  by  consent  to  defend,  upon 
an  admission  of  actual  possession  in  that  person,  it  must  be  un- 
ci that  it  was  the  object    of  thosi    i     rti       to  try   the  title 

between  themselves  at  once,  without  the  delay  or  expense  of  a 
new  suit.      Lee  v.  Flannagan,  7  [red.,  471. 

lij.  Where,  in  ejectment  against  a  tenant,  a  person  comes  in 
and  is  admitted  to  defend  upon  his  affidavit,  "that  the  premises 
in  dispute  were  his.  that  the  tenant  allegi  d  to  be  in  posse  sion 
was  his  tenant,  and  that  he  was  the  landlord  of  the  premises 
sued  for,"  it  is  not  necessary  for  the  plaintiff  to  prove  that  the 
defendant  was  in  the  actual  possession  of  tin    |  bi  cause 

that  is  admitted  by  the  landlord,  whin  he  applied  to  be  made 
defendant.     McDowell  v.  Love,  s  [red.,  502. 

20.  \\  here  a  person,  already  in  possession  of  land,  takes  a  lease 
from  another,  and  holds  over  after  his  term  has  expired,  whetli- 
er  this  is  a  case  coming  within  the  ait,  Rev.  Stat,  ch.  31,  sec. 
51,  requiring  bonds  from  tenants  refusing  to  surrender  posses- 
sion, before  they  are  allowed  to  defend,  &c,  quaire.  But  in  all 
cases,  where  the  landlord  wishes  to  avail  himself  of  the  act,  he 
not  only  must  state  the  lease,  -and  that  the  term  has  expired,  but 
he  must  also  set  forth  in  his  affidavit  explicitly,  or  in  such  a 
manner  that  the  court  may  necessarily  or  fairly  draw  the  in- 
ference, that  the  tenant,  after  the  term  expired,  had  refused  to 
surrender  the  possession.  Fheljis  v.  Long,  9  lred.,  226.  (See 
llev.  Code,  ch.  31,  sec.  48.) 

21.  A,  by  virtue  of  an  order  of  the  county  court,  founded  on 


3%  EJECTMENT.— IX. 

a  judgment  before  a  justice,  and  an  execution  thereon,  levied  on 
the  8th  pf  March,  1842,  issued  a  vend.  v. vim.,  bearing  teste  of  May 
term,  1842,  under  which  the  land  of  B  was  sold,  and  A  became 
the  purchaser:  0  issued  nvend.  expo,  teamed  of  May  term,  1842, 
pursuing  a  /<'.  fa.,  tested  of  February  term  preceding,  under 
which  the  same  land  of  B  was  sold,  and  D  became  the  purcha^ 
ser,  and  having  effected  a  recovery  in  ejectment,  was  about  to 
turn  B  out  of  possession,  when  he  accepted  a  lease  from  D,  and 
continued  in  possession;  and  it  was  held  in  an  action  of  eject- 
ment by  A.  against  B,  that  although  D;  who  had  been  admitted 
to  defend,  as  landlord,  could  make  no  defence  which  B'could  not 
have  made,  yel  B  himself  might  have  given  in  evidence'  these 
circumstances  to  rebut  A's  claim  to  recover,  by  showing'  I>'s 
title  to  be  paramount  to  A's  and  that  he,  B,  was  tenant  of  D. — 
Jordan  v.  Marsh,  9  [red,  234. 

22.  Where  a  defendant  in  an  execution  is  sued  in  ejectment  by 
the  purchaser  under  that  execution,  he  is-  not  prevented  from 
contesting  the  right  to  recover,  unless  the  execution  was  a  valid 
one.     Smith  v,  Furr.  10  Irech,  37. 

23.  In  the  action  ofjgectment,  one,  who-comesin  as  landlord, 
is  generally  to  be  taken  as  admitting  possession,  of  all  the  lam! 
described  in  the  declaration,  to  have  been  in  the  tenant,  and  to 
be  in  himself.  Bu1  when  the  declaration  embraces  severaraacts, 
held  separately  by  different  tenants,  the  admission  of  possessiop 
by  the  landlord  should  lie  referred  only  to  the'  tract  occupied  by 
the  tenant  on  whom  the  proi  ess  was  served.  King  v.  Britiain, 
10  Led,  116. 

24.  In  an  ejectrnenl  brought  by  a  purchaser  at  a  sheriff's  sale 
against  th  rl  fen  laht  in  the  execution,  the  latter,  while  still  in 
possession,  cannot  resist  a  recovery,  upon  the  ground  that  he,  the 
defendant,  has  a  better  title.      Li/irli/y.   JVJieeler,  11  Ired ,  288. 

25.  Where  the  lai  d  of  a  debtor  has  been  soft} under  execution, 
and  ejei  broug-ht  to  recover  possession,  he  has  no  rigtit 
to  object  that  the  sheriff  has  1101  made  the  deed  to  the  pm> 
chaser  at  <ntion  sale,  for  the  sheriff  may  convey  to  an 
assignee,  whether  he  be  an  assignee  by  law  or  1>\  contract, 
Bronlcsv.  Batdifi  1!   [red.,  321. 

2(i.  The  rule  is  well  established  in  ejectment,  that  when  a 
person  is  a  duel  ted  by  the  court  to  defi  nd  as  landlord,  which,  he  has 
a  right  to  claim,  he  stands  in  the  place  of  his  tenant,  and  can 
make  no  derence  which  the  tenant  could  not  have  made.  Wig- 
gins v.  Reddick,  11  [red.,  380. 

27.  Where  A  lives  upon  land  together  with  B,  who  claims  the 
title,  and  the  land  is  sold  under  an  execution  against  A,  in  an 
action  of  ejectment,  by  the  purchaser,  under  the  execution  against 
A,  the  latter  cannot  protect  himself  by  setting  up  the  title  of  B. 
But  (by  oue  of  the  Judges)  if  B,  in  such  a  case,  after  judgment; 
can  satisfy  the  court  by  proper  afhVhivits,.  that  he  had  a  honafnh 


ETECTMEKr.— IX  397 

claim  of  title,  and  is  in  poseegeioiij  the  court  has  power  to  order 
the  writ  of  possession  not  to  be  issued,  until  the  plaintiff 
brings  an  action  of  ejects^  A  atgemsit  himv  Judge  v.  Houston,  12 
Ired.,  108. 

28.   When  a  per  .  ■    land 

is  subject  to  a  levy,  under  which  it  is  afl  1,  he  stands 

in  no  better  situation,  in  defencbbig  an  ejectrnenl  tha  -d  ibtor, 
win  is.-  place  he  lias  taken.     Carson  v.  Smart,  1  : 

2'.'.   lu  England,  at  common  few,  a  failure  of  th< 
confess,  atth  trial,  I  ase, entry  and; ousti  i  ace         igto  the  con- 
sent rule,  the  fessor  of  tin    plaintiff  was   non  si  it   '.  th  iugh  he 
mighl  aft  rwards  signjudgim  at  against  the  ca  r;  but 

in  ce,  where  the  judgment  is- entered  ii me  court 

v.-lii ■!■■■  I  I  iigs  ar<   ii -  up  and  the  trial  tal  e,  the 

I  ion-suited,  but  has  his  ji 

Lai  ejector.     Johnson  v.  J;'. 
;ood  defenci     igahasl    th         tion  of  ej  mt  that 

:  'I  lainl  lit'  I,;.-,  siaee   its  eon 

p  '      pre   rises;  but   su*  b  fi 

ti 
Jo,   <son  v.  Swain,  Bu  b.,  335. 
31.  -The  5  of  the  1      .   Stat.,  cb.   31,   is  a  n 

act.  and  ceive  a  lil  era!  ci  ns  tructi 

to  B,  who  put  C  in  pos  will,  it 

■  I '  was  within   the   true  meaning  of  tl 
an  action  of 
;  aired  being  ]  t1  ed  to 

ehdarrt  to  the  action.     Morris  v.  Si  b.,  464. 

I  -  18.)  ' 

en  pos- 
session  of  1 

:  in   some  form,  or  it  cai    o     b 

court.  v.  Red,  ~1  Jones,  412. 

act   of    1823,  respecting   the  :osts  and 

d: 

permitted  to  defend  an  a. -linn  of  ejectment,  a] 
one  who       i  I  the  land  during  the  lealse.  wusev 

JBagley,  3  Jones,  295.     (See  Rev.  Code,  ch.  31,  sec.  48.) 

sary  tob    made  by  the  plaintiff  *s  I 
in  order  to   requii  irityfiom  a  tenant   holding  over, 

out  the  length  of  the  term,  nor  whether  the  lease 
was  for  yi  ars,  or  from  year  to  year.     Ibid. 

35.  An  affidavit  in  such  case,  which  sets  forth  "-that  tin  lease 
had  expired  before  the  bringing  of  the  suit;  that  the  defendant 
rises' to  surrender  possession  and  holds  over  againstthe  will 
and  consent  of  the  affiant,  and  mm  pretends  to  claim  title 
thereto,"  is  sufficient,  without  alleging  a  more- formal  demand 
and  refusal  before  bringing  suit.     Ibid. 


398  EJECTMENT.— IX.-X. 

36.  No  person  can  defend  himself  against  an  action  of  eject- 
ment, upon  the  ground  that  he  has  not  had  any  notice  to  quit, 
unless  he  be  a  tenant  of  some  kind  to  the  lessor  of  the  plaintiff. 
Eat"n  v.  George,  3  Jones,  385. 

37.  The  general  rule  in  an  action  of  ejectment  is,  that  the 
plaintiff  must  prove  the  defendant  to  be  in  possession  of  the 
premises  sued  for,  notwithstanding  the  confession  of  lease,  entry 
and  ouster  in  the  common  rule.  The  principle  of  this  ride  is  to 
prevent  surprise  on  the  party  who  makes  himself  a  defendant; 
but  where  a  person  was  served  with  a  copy  of  the  declaration 
after  he  had  left  the  premises,  and  came  forward,  entered  into 
the  come  rule,  and  contested  the  matter  upon  the  validity  of  the 
title  deeds,  from  the  person  under  whom  both  parties  claimed; 
tV  was  held  that,  as  there  was  no  question  as  to  the  identity  of 
the  land  in  dispute,  the  defendant  could  not  be  heard  to  allege 
that  he  was  not  in  possession,  when  the  declaration  was 

upon  him.     Atwell  v.  McLure,  4  Jones,  371. 

38.  Where  several  defendants  are  sued  in  ejectment,  and  one 
of  them  shows  seven  years  possession  under  a  color  of  title,  his 
defence,  if  his  possession  were  distract  from  that  of  the  others. 
can  in  no  wise  avail  them.     McKay  v.  Glove?-,  7  Junes,  41. 

39.  Where  the  plaintiff  in  an  action  of  ejectment  lias  filed  an 
affidavit,  stating  that  the  defendant  had  entered  as  his  tenant, 
such  defendant  cannot,  under  the  acl  of  l#5fi,  ch.  14,  plead, 
without  giving  bond  to  secure  the  costs,  even  though  he  makes 
affidavit  that  he  is  unable,  on  account  of  his  poverty,  to  do  so''. 
Gowles  v.  Carter,  8  Jones,  381. 

40.  When  action  of  ejectmi  nt  is  brought  against  one,  who  en- 
tered into  the  premises  as  a  tenanl  of  the  plaintiff's  lessor,  an  d 
another  person  is  permitti  d  to  defend  as  landlord,  upon  an  affi- 
davit that  the  tenant  in  possession  had  become  his  tenant,  it  teas 
1,,'iil.  that  the  plaintiff  was  not  hound  to  show  that  he  had  given 
such  tenant  notice  to  quit.     Foust  v.  Trice,  8  Jones,  490. 

41.  In  an  action  of  ejectment,  a  landlord  who  is  permitted  to 
defend  the  suit  in  the  place  of  his  tenant,  is  confined  to  the 
same  defence  as  his  tenant  would  have  been  allowed  to  make. 
Sinclair  v.    Worthy,  1  'A'inst.,  114. 

42.  In  ejectment  against  the  debtor,  by  a  purchaser  at  a  sher- 
iff's sale,  the  lessor  of  the  plaintiff  need  only  show  a  judg- 
ment, execution  and  sheriff's  deed,     Ibid. 

See  (Estoppel — By  matter  of  record,  11.) 

X.        JUDGMENT    AN1>    WHIT  OF    POSSESSION. 

1.  Where  a  judgment  was  taken  by  default  against  a  casual 
ejector,  and  a  writ  of  possession  executed,  the  judgment  was 
set  aside  upon  the  payment  of  full  costs,  by  the  tenant  in  poss- 
ession, who  was  made  defendant,  and  he  had,  thereupon,  a  writ 


EJECTMENT— X.  399 

to  restore  him  to  the  possession.  Mcllwene  v.  Shine,  Mar. 
54,  (52.) 

2.  On  a  disclaimer,  the  plaintiff  may  take  out  execution  for 
the  part  disclaimed.     Squires  v.  Riggs,  2  Hay..  150,  (326.) 

.').  No  formal  judgment  is  required,  in  this  State,  in  an  action 
of  ejectment,  more  thanin  any  other  action;  if  the  judgment  be 
entered  as  in  other  similar  eases,  it  must  be  deemed  sufficient. — 
Murphy  v.  Gi  tow,  2  Murph,  238. 

4.  W"  1 1'  -ii  a  judgment  has  been  given  against  a  defendant,  be- 

iriven  bond  and  security  for  costs  as  required 
by  law,  and  the  plaintiff  put  into  possession  by  a  writ  for  thai 
purpose.  uiKin  good  canst'  shown  to  the  court,  at  the  next  term. 
By  affidavit,  the  judgment  may  be  set  aside  and  the  defendant 
restored  to  the  land,  with  permision  to  plead  upon  giving  the 
|eci  irv  bond  and  security.  Beany  v.  PiUey,  2  Car.  L.  R., 
444,  (329.) 

5.  Judgments  by  default  againsthe  casual  ejector  will  be  set 
aside,  when  the  declaration  has  not  been  served  on  the  tenant 
in  possession.      Bh  hoe.  v.    fVilson,  2  Dev.,  M14. 

6.  Where  a  general  verdict  is  found  in  an  action  of  ejectment, 

;  lent,  that   the  plaintiff  recover   his  term,    is  proper  in 
point  of  form.     Bronson  v.  Paynter,  4  Dev.  and  Bat.,  393. 

7.  Upon  a  judgment  by  default  against  a  casual"  ejector,  if  it 
be  shown  to  the  court  that  there  are  other  persons  in  posses- 
sion, holding  parcels  in  severalty,  judgment  will  not 
be  allowed  for  the  whole'  tract  sued  for,  bill  only  for  the  part  of 
which  the  person  on  whom]  the   declaration  was   served,  was  in 

-ion.     Thomas  v.  Orrell,  5  Ired.,  569. 
6.   A  plaintiff  may  recovi  r  in  ejectment  upon  the  di  mise  of 
Only  on i   oi  al  tenants  in  common,  to  the  extent,  of  his  inter- 

est; and  there  may  be  a  general  verdict  and  judgment   that  he 

ri ver  his  term,   as  the  plaintiff  will  proceed  at  his  pi  ril  under 

the  writ  of  possession.     Shaw  v.  Shepard,  6  Ired.,  361. 

9.  In  I  lie  jury  may  find  the  precise  interest  of  the 
lessor  of  the  plaintiff  and  find  the  defendant  guilty  as  to  that, 

and  judgment  shall  I titered  accordingly     Lenoir  v.  South,  10 

[red.,  237. 

10.  When  the  real  plaintiff  in  ejectment  is  a  tenant  in  com- 
mon, thougl  i  Luc  for  the  whole,  he  has  not  an  abso 
lute  right   to  have  a   verdict  for  the  whole,  but    the  jury  may 

1  such  a  verdict,  leaving  the  plaintiff  to  take  possession 
at  his  peril.  The  more  correal  course,  however,  is  when  the  ex- 
tent of  the  1  I  in  be  seen  with  reasonable  certainty,  to  set 
forth  in  the  verdict  the  undivided  share,  to  which  the  title  was 
apparent;  and  to  enter  the  judgment  accordingly.  Pierce  v. 
Wanett,  10  Ired.. 

11.  If,  in  ejectment,  the  lessor  die,  the  suit  will  not  abate, but 
a  judgment  may  be  rendered,  though,  when  the  lessor  was  only 


400  EJECTMENT.— X.-XI. 

a  tenant  for  life,  the  court  will  not  award  a  writ  of  possession. 
Wilson  v.  Hall,  13  Ireit489. 

12.  When  the  deceased  lessor  claimed  a  fee,  judgment  may  be 
rendered  as  if  he  were  alive:  and  a  writ  of  po  ion  may  be 
awarded,  though  it  will  be  under  the  direction  and  control  of 
the  court,  as  to  the  persons  entitled  to  be  put  in,  as  heirs,  by  the 
sheriff.     Ibid. 

13.  Where  the  defendants  arc  some  of  the  heirs  of  the  de- 
er;!:-!'.I  lessor,  the  proceedings  under  the  judgment  ami  o\<  cation 
should  he  accordingly  modified,  by  not  putting  the  de<  alants 
out  of  possession,  but  by  putting  in  the  other  heirs  with  them. 
Ibid. 

14.  If  a  plaintiff  in  ejectment  shows  title  to  any  par.  of  the 
land  contained  in  his  demise,  frhich  is  in  the  deli  ,,,i  ml'  posses- 
sion, the  jury  may  render  a  general  verdict.  Or  they  may.  under 
the  direction  of  the  court,  find  sp<  ci  illy,  so  as  to  enable  the  par- 
tics  to  run  their  lines.     McKay  v.  Glover,  7  -Tones,  41. 

15.  Where  there  was  two  counts  in  an  action  of  ejectment  on 
the  demises  of  several  heirs  at  law,  and  a  general  verdict  was 
rendered,  giving  nominal  damages,  but  on  a  point  of  law  reserved 
it  was  determined  that  the  lessor  in  one  of  the  counts  was  barred 
by  the  statute  of  limitations,  it  urn  th  I  the  plaintiff  was, 
nevertheless,  entitled  to  his  judgdment  on  tin  he  other 
lessor.     (  lildersv.  Bnmgarn<  r,  ■'■  Jones,  297. 

It').  A  judgment  that  the  del  over  his  costs,  from  the 

lessor  i  lintifi  in  an  ;■■  I  when  1  he  plain- 

e  suit,   and  an  executio  i     lied 

i,  were  held  to  be  proper.    Bl  ■  right,  1  Winst.,  89. 

17.  After  a  plaintiff  in  ejectment  has  obtained  a  jndgmeivl 

against  the  tenant  in  possession,  upon  v  tion  has 

anol  be  deprived  of  the  fruit  Igrnent 

by  an  order  of  the  court  to  stay  the  writ  of  po:  ses  :ion,  on  tl  e 

suggestion  that  the   title    was  in    some    other  person.      '<'■,   h    i 

v.    Worthy,    1    Winst.,  114. 

Si  e  (  Ejectment — Of  the  declaration,  11-12.)  (Ejectment — Of 
the  defence  and  herein  of  the  consent  ruli .  29. ) 

XI.   TRESPASS  FOB  MESNE  PROFITS. 

1.  The  action  of  tresspass  for  mesne  profits  does  not  accrue. 
until  possession  is  given,  after  judgment  in  the  action  of  eject- 
ment, and  from  that  time  only  the  statute  of  limitations  begins 
to  run.  Murphy  v.  Guion,  2 Hay.,  145,  (318,)  162,  (347)  and  381, 
(580.,)  S.  C,  2  Murph.,  238  ami  1  Car.,  L.l.\,  95,  (12.) 

•2.  Where  an  action  of  trespass  tor  mesne  profits  was  la-ought 
two  years  after  the  decision  of  the  action  of  the  ejectment,  in 
which  the  demise  had  expired  before  the  decision;  held  that  the 
plaintiff  was  entitled  to   recover  for  the   wiiole  time,    from  the 


EJECTMENT.— XI.  401 

commencement  of  the  demise  to  the  taking  possession;  it  being 
eleven  years.     Murphy  v.  Ghrion,  -  Murph.,  238. 

3.  After  a  plaintiff  in  ejectment  has  obtained  judgment  and 
been  put  into  possession,  it  is  too  late  for  the  defendant,  when 
sued  for  the  mesne  profits,  to  object  that  the  demise  had  expired 
before  the  judgment  in  ejectment     Ibid. 

4.  If  ejectment  be  brought  against  one  who  dies  pending  the 
action,  and  the  guardian  of  the  infant  heirs,  Upon  a  sei.  fa.  to 
make  them  parties,  comes  forward  and  in  their  names  defends 
the  suit,  and  receives  the  rents  and  profits  of  the  land  during 
the  suit,  the  plaintiff  may,  upon  a  recovery  in  the  action,  sus- 
tain trespass  tor  the  mesne  profits  againsl  such  heirs.  Molton  v. 
Miuuford,  •">  Hawks,  483. 

5.  An  action  of  trespass  for  mesne  profits  may  be  brought 
against  an  administrator,  to  n  cover  profits  received  by  an  intes- 
tate in  his  life  time;  and  the  record  of  tne  recovery  against  the 
heirs,  against  whom  the  suit  had  been  revived,  will  be  evidence 
for  the  plaintiff  in  the  suit  against  the  administrator.  Molton  v. 
MUer,  3  1  lawks,  490. 

6.  It  seems  that  in  an  action  for  mesne  profits,  the  jury  may 
consider,  in  mitigation  of  damage  ;l  improvements, 
honestly  made  by  the  defendant,  and  actually  enjoyed  by  the 
plaintiff.     Dowdv.  FaucetL  4  Dev..  92. 

7.  In  trespass  for  mesne  profits,  the  record   of  recovery  in 

snt  is  conclusive  evidence  of  the  title  of  the  lessor  of  the 
plaintiff  at  the  date  of  the  demise  ;  but  it  is  no  evidence  at  all 
that  the  defendant's  possession  commenced  at  that  time,  or  at 
any  time  before  the  commencement  of  the  action  of  ejectment; 
and  the  fact  of  its  having  commenced  earlier  than  the  last  men- 
tioned time  must  be  proved  aliim.de.  Poston  v.  Jones,  2  Dev.and 
Bat,  294. 

8.  The  record  of  the  recovery  in  ejectment  is  conclusive  in 
tin  :  ii  for  mesne  profits,  to  establish  the  defendant's  possession's 
at  the  commnecement  of  the  ejectment;  and  it  is  also  prima 
facie  evidence  of  that  possession  being  continued  till  the  judg* 

.■lid  execution ;  1  nit  the  defendant  may,  on  the  contrary, 
show  that  his  possession  terminated  earlier  than  that  time,  under 
such  circumstances  as  to  relieve  him  from  further  liability.    Ibid. 

9.  'Whore  a  recovery  in  ejectm  ad  is  effected  on  the  demises 
of  two  only  of  several  tenants,  and  afterwards  an  action  is 
brought  for  mesne  profits,  none  but  the  shares  of  such  mesne 
pri  i  s  to  which  those  two  tenants  are  entitled  can  be  recovered; 
and  it  makes  no  differeu  er  the  action  for  mesne  profits 
be  brougMt  in  the  name  of  the  fictitious  lessee,  or  of  his  lessors. 
Hold)       v.  Shepara,  9  Ired.,  222. 

10.  A  plaintiff  who  has  recovered  in  an  action  of  ejectment, 
has  no  right  to  seize  upon  the  produce  of  the  land,  which 
was    severed    before    the    writ   of  possession    was    executed. 

26 


402  EJECTMENT.— Xl.-XII.— ELECTION— I. 

His  remedy  is  by  an  action  for  the  mesne  profits.  Brothers  v. 
Hurdle,  10  lied.,  490. 

11.  Where  a  recove^r  is  had  in  ejectment,  upon  the  several 
demises  of  different  persons,  all  the  lessors  may  unite  in  a  joint 
action  for  the  mesne  profits.     Camp  v.  Holmesly,  Hired.,  211. 

12.  A  recovery  in  ejectment  will  not  support  an  action  for  the 
mesne  profits,  unless  the  lessor  has  regained  thepossession,  either 
by  being  put  in  under  process,  or  by  being  let  in.  Post&nv. 
Henry,  11  Ired.,  301. 

13.  Where  a  recovery  in  ejectment  is  upon  the  demise  of  one 
of  several  lessors,  putting  ani  >r  in  possession  does  not 
entitle  the  lessor,  upon  whose  demise  the  recovery  was  effected, 
to  an  action  for  the  mesne  profits.     Ibid. 

1  !.  Although  in  ejectment  the  usual  course  is  to  recover  nom- 
inal damages,  leaving  the  real  damages  to  be  recovered  in  the 
subsi  quenl  ai  tion  of  i  respass  for  - 1  profits,  yet  it  would 

not  be  error  to  direct  that  the  actual  damages  should  be  assessed 
in  the  action  of  ejectment,  the  division  of  the  actions  being 
merely  for  convenience.     Miller  v.  Mt  Ichor,  13  Ired.,  439. 

15.  After  recovery  in  ejectment,  an  action  for  mesne  profits 
may  be  brought  in  the  name  either  of  the  nominal  plaintiff,  or 
of  his  lessor,  but  it  cannot,  he  brought  in  the  name  of  both 
jointly.     Blount  v.  Lunsford,  Busb.,  401. 

Hi.  Where  the  plaintiff,  in  ejectment,  after  recovering  in  that 
action,  failsto  take  actual  possession  of  the  premises  recovered, 
although  the  defendant  has  left  them,  he  cannot  sustain  an  action 
of  trespass  for  the  mesne  profits.     Carsonv.  Smith,  J<  nes,  106. 

17.  One,  who  comes  in  as  underlessee  to  thedefendant  in  an 
action  of  ejectment,  pending  the  action,  is  bound  by  the  pro- 
ceedings hail  therein,  ami.  consequently,  is  liable  to  the  action 
for  mesne  profits.     Bradley  v.  McDaniel,  3  Jones,  128. 

XII.       WHEN    TUE    ACTION    ABATES. 

See  (Abatement — By  the  death  of  parties,  1-10-11.) 


ELECTION. 

II.  Election  between  inconsistent  benefits.  |  II.  Election  oi  public  officer?,. 
I.       ELECTION    BETWEEN  INCONSISTENT    BENEFITS. 

1.  The  doctrine  of  election,  by  which  a  person  is  prohibited 
from  taking  a  benefit  under  a  will,   and  at  the  same  time  disap- 


ELECTION.— I. -II.— EMBEZZLING,  &c.  403 

pointing  the  plain  provisions  of  that  will,  in  favor  of  third  persons, 
is  confined  to  courts  of  equity,  and  does  not  affect  titles  at  law. 
BeU  v.  Culpepper,  2  Dev.  and  Bat.,  18. 

2.  The  acceptance  of  a  legacy  under  a  will  cannot,  at  law, 
:i  the  legatee  from  setting  up  any  claim,  which  he  may 
have  to  property  beqiiLM  i,  in  the  same  will. 

Alston  v.  Ha  tdin,  2  Dev.  and  Bat.,  115. 

II.       ELECTION   OF    PUBLIC    OFFICERS. 

See  (Clerks  and  Clerks  and  Masters — Of  their  election  or  ap- 
pointment.) (Constables — Of  their  election  or  appointment.) 
(Sheriffs — Of  the  election  of  sheriffs.) 


EMBEZZLING. 

See  (Indictment — In  what  cases  an  indictment  will  lie,  1.) 


EMBLEMENTS. 

1.  The  remainderman  is  entitled,  if  the  tenant  for  life  die 
before  the- crop  is  planted;  but  in  an  action  on  the  case  under 
such  circumstances,  lor  use  and  occupation,  the  defendant  ought 
to  be  allowed  for  his  labor  in  preparing  the  ground  for  tillage. 
Gee  v.  Young,  1  Hay.,  17,  (23.) 


ENLISTMENT. 

1.  Under  th>  act  of  congress,  regulating  the  enlistment  of 
soldiers  in  the  army  of  the  United  States,  when  the  father  is 
dead  and  the  son  is  without  guardian  or  master,  the  consent  in 
writing  ol  the  mother,  if  she  be  alive,  is  necessary  to  make  a  va- 
lid enlistment  of  the  son,  if  he  be  a  minor;  and  such  minor,  en- 
listing without  such  consent,  may  be  discharged  upon  a  writ  of 
Juibtas  corpus.     Ex  parte  Mason,  1  Murph.,  336. 


404  ENLISTMENT.— ENTRY. 

2.  A  soldier,  who  is  under  arrest  and  in  confinement,  for  a  vi- 
olation of  orders,  cannot  procure  his  discharge  by  means  of  the 
writ  of  habeas  corpus,  on  the  allegation  that  he  was  an  infant  at 
the  time  of  enlistment.  Nor  can  he,  or  his  guardian,  raise 
that  question  before  a  civil  tribunal,  while  he  is  in  custody  and 
amenable  for  trial  before  a  military  tribunal.  Ex  parte  Graham, 
8  Jones,  416. 

3.  Whether  a  minor  of  the  age  of  twenty  years,  who  enlisted 
under  the  act  of  1860,  1st  extra  session,  ch.  6,  and  has  taken  and 
subscribed  the  oath  prescribed  on  such  enlistment,  is  entitled  to 
his  discharge  on  the  ground  of  nonage,  and  that  he  enlisted 
without  the  consent  of  his  guardian,  qucere  ?     Ibid. 

See  (Habeas  Corpus,  8-'.).) 


ENTRY. 

1.  Rocks  in  a  river,  above  the  surface  of  the  water,  are  vacant 
property,  subject  to  our  entry  laws.  Jones  v.  Jours,  1  Hay,  488, 
.(56:;.) 

2.  Lands  lying  in  one  county  cannot  be  entered  in  another. — 
Avery  v.  StrotJier,  Conf.  hep..  43!,  ( 196,)  (See  Rev.  Code.  ch.  42, 
sec  27.) 

3.  Entries  of  lands  lying  within  the  Indian  boundaries  are 
void.     Ibid. 

4.  No  cases  in  relation  to  the  entry  of  vacant  lands  are  oper- 
ated upon  by  the  act  of  1779,  authorizing  caveats,  except  those 
whit h  arose  from  the  discontinuance  of  the  land  offices.  In  all 
other  eases,  the'  first  enterer  must  prevail.  McNeil  v.  Lewis,  N. 
C.  Term,  R.  80,  (517.) 

5.  The  acts  of  limitation  in  regard  to  land  titles  arc  found- 
ed upon  the  presumption  thatagrant  onqJ§  existed,  and  has 
been  lost;  but  in  a  caveat  both  parties  admit  the  land  to  he  va- 
cant, and  tiie  question  is,  to  whom  shall  a  title  be  made.  Ibid. 

6.  Land  covered  by  an  arm  of  the  sea,,  onlyat  high  water,  may 
be  entered  and  granted,  and  the  grantee  may  maintain  an  ac- 
tion of  trespass  quare  clausum /regit  for  taking  oysters  from 
rocks  within  the  grant,  McKenzie  v.  Unlet,  N.  C.  Term,  R.  181, 
(613.) 

7.  Entries  made  by  entry  takers,  otherwise  than  the  act  di- 
rects, are  void.  Terrell  v.  Manney,  2  Murph,  375.  (See  Rev. 
Code,  ch.  42.  sec.  16.) 

8.  If  a  navigable  lake  recede  gradually  and  insensibly,  the 
derelict  land  will  belong  to  the  riparean  proprietor,  but  if  the  re- 


ENTRY.— ESCHEAT.— ESTATES  TAIL.  405 

cession  be  sudden  and  considerable,  the  derelict  land  will  belong 
to  the  State,  and  be  subject  to  entry  and  grant.  Murray  v.  Ser- 
mon, 1  Hawks,  56. 

9.  Lands  covered  by  navigable  waters  are  not  subject  to  entry 
and  grant,  under  the  entry  laws.  Tectum  v.  Sawyer,  2  Hawks, 
226. 

10.  An  entry  of  land  is  a  mere  equity  to  demand  a  grant,  upon 
payment  of  the  ptfrchase  money  in  due  time,  and  is  not  noticed 
m  law  except  in  cases  of  caveats  under  the  act  of  1777,  which 
arose  upon  the  discontinuance  of  the  land  offices;  and,  upon  a 
proper  case,  one  who  first  enters  land  lias  relief  in  equity  against 
another,  who  obtains  a  grant  for  it  with  notice  of  the  entry. — 
Featherston  v.  MUls,  4  Dev.,  596.  L.  P.,  a  Kelly  v.  Clayton,  2 
Dev.  and  Bat.,  24$. 

See  (Ejectment — Entry  when  necessary,  and  its  effect.) 


ESCHEAT. 

1.  The  word  "escheat,"  used  in  the  grant  to  the  university  of 
all  eschjeated  property,  eriSbraces  every  case  of  property,  tailing 
to  the  State  for  the  want  of  an  owner.  GUmowr  v.  Kay,  2  Hay, 
108,  (265  ) 


ESTATES   TAIL. 

1.  The  act  of  1784,  (Rev.  Code,  eh.  43,  see.  1,)  barred  a  remain- 
der, dependent  upon  an  estate  tail  in  possession  of  the  tenant  in 
tail  at  the  time  of  the  passage  of  the  act.  Lane  v.  Davis,  1  Hay, 
277,  (319.) 

2.  Tenant  in  tail  sells  land  in  1778  and  dies,  leaving  a  larger 
estate  in  land  -to  his  son;  the  son  is  barred  both  by  the  warran- 
ty with  assets  descended,  and  the  express  words  of  the  act  of 
1784,  ban-rag  entails.     Minge  v.  Gilmour,  1  Hay..  279,  (322.) 

3.  If  tenant  in  tail  had  sold  land  in  fee  simple  before  the  act 
of  1784,  and  the  purchaser  was  possessed  of  the  land  at  the  pas- 
sage of  the  act,  he  came  within  its  provissions,  and  was  entitled 
to  the  fee  simple,  though  the  entail  had  expired  before  that  time. 
Quaere.     Moore  v.  Bradley,  2  Hay,  142,  (313.) 


406  ESTOPPEL.— I. 


ESTOPPEL. 

'  I.  By  matter  of  Record.  I  III.  By  matter  other  than  by  record  or 

II.  By  deed.  deed. 

I.       BY    MATTER    OF    RECORD. 

1.  A  judgment  for  dower  is  no  estoppel  to  creditors.     Paul  v. 

Ward,  4  Dev.,  247. 

I  2.  A  final  judgment  in  a  petition  for  partition  of  real  e  tati 
under  the  act  of  1789,  is  conclusive  upon  all   the  parties  to  it; 
and  each  party  is  estopped   to  dispute  the  title  of  any  other  to 
the  lot  assigned  to  that  other  in  severally.     Mills  v.   Withering 
Inn,  2  Dev.  and  Bat.,  433. 

3.  A  being  entitled  to  a  distributive  share  in  certain  slaves 
belonging  to  an  intestate's  estate,  before  administration  granted 
conveyed  to  B,  by  deed,  certain  slaves  spe  ifieally  and  by  name. 
After  letters  of  administration  issued,  B,  who  was  also  one  of 
the  next  of  kin,  joined  with  A  and  the  other  next  of  kin  iD  a 
petition  against  the  administrator  for  a  settlement  of  the  estate 
and  a  division  of  the  slaves,  and  the  slaves,  which  had  been  con- 
veyed by  A  to  B,  were,  undef  the  tition, 
allotted  to  A ;  and  it  tons  i  '  .  i  byB  against  A 
t"  reco1                   .'i  s,  A  was  estopped  from  denying  that  : 

prtle  to  the  slaves  at  the  time  she  conveyed  them ;  and  that  B 
was  apt  esto    >  d  by  the  proceedings  on  the  peti 
ing  hi  list  A.     Posh  v.  Zen,  10  Ired.,  410. 

4.  Where  a  fact  has  I         agr  •  ■[  on,  or  dee  urt  of 

parties  thereto  shall  thei  allowed 

Lesti  >n,  so  long  as  the  tent  oi 

unreverse  I.     A,-,  i  ,    tnd  B  filed  their  petition  in  tiie  coun- 

ty court  for  a  partition  of  slaves,  alleging  they  were  tenants  in 

I      ,  ree  made,  >ort  of  comii 

i  unrated,  A  sold  his  share,  it  wa    ■  a  suit  between  A's 

B,  for  the  share  of  A  so  sold,  B  w;  i  from 

denying  A's  title,  though  it  should  appeal  in  truth. 

tenant  in  common,  but  that  the  share  allotted  to  him  belonged 
to  B,  en  aut<  r  droit.    And  as  B  was  ing  title 

tit,  a  fortiori  it  was  n6  defence  for  him  that  the  dis- 
puted outstanding  in  a  third  person.  Armjieklv   i 
Busb.  157.     S.  P.  Fansliaw  v.  Fanshato,  Busb.  166. 

5.  Where,  in  a  peMtion  for  the  sale  of  land  for  partition,  the 
description  is  of  the  lands  of  the  ancestor  of  the  parties,  and 
there  is  a  decree  of  the  court  of  equity  for  the  sale  of  the  lands 
"  mentioned  in  the  petition,"  suchjlecree  is  not  sufficient  to  estop 
one  of  the  parties,  claiming  by  a  deed  from  the  ancestor;  and  a 
deed  filed  by  the  del'endant  in  that  suit,  under  an  order  of  the 


ESTOPPEL— I.  407 

court,  but  not  in  any  way  incorporated  in  that  proceeding,  will 
not  render  the  description  or  the  decree  more  certain.  Morrison 
v.  Laughter,  2  Jones,  354 

6.  Where,  in  an  action  of  trespass  quart  davsum  fregit,  the 
defendant  pleaded  the  general  issue  of  "not  guilty, '  and  also 
the  special  plea  of  "liberum  tenementum,"  and  the  jury  found  all 
the  issues  in  favor  of  the  defendant,  upon  which  he  had  judge- 
ment entered  for  him,  it  ivas  held,  (Nash  G.  J.  dissenting,)  that 
the  plaintiff  was  not  thereby  estopped  from  bringing  another 
action  for  a  trespass  by  the  defendant  on  the  same  land.  Boijers 
v.  Satcliff,  3  Jones,  225. 

7.  Where  an  action  was  brought  for  the  breach  of  an  entire 
covenant,  in  which  the  plaintiff  was  entitled  to  recover  the 
whole  damages,  prospective  as  well  as  those  which  had  accrued 
before  the  bringing  of  the  suit,  hut  he  was  restricted  by  an 
erroneous  decision  of  the  court  below  to  the  latter;  it-was  held, 
that  he  was  estopped,  nevertheless,  from  bringing  another  suit 
or  recover  the  damagi  s  subsequently  accruing.  He  ought  to 
have  appealed  from  the  erroneous  decision  in  the  first  suit. 
Window  v.  Stokes,  3  Jones,  285. 

8.  Proceedingsin  the  garnishment  of  one  creditor,  where  there 
was  an  issue  and  a  verdict  that  there  were  no  funds  in  the  de- 
fendant's hands,  beyond  a.  certain  amount  confessed  by  him, 
create  no  estoppel  upon  an  issue  to  try  the  same  fact  in  another 
garnishment  in  behalf  of  another  creditor.     SpruM  v.  T 

5  Jones,  39. 

9.  In  a  suit  to  recover  back  money  paid  for  the  purchase  ol    i 

'  promissory  note,  taken  without  endorsement,  it  is  no 
estoppel  that  the  purchaser  nad  obtained,  in  the  name  of  the 
Beller  to  his  use,  a  judgment  against  the  ostensible  maker. 
White  v.  Green,  5  Jones.  47. 

10.  A  joined  in  a  suit  for  the  partition  of  slaves,  in  which  i 
certain  one  was  assigned  to  C.     A  became  the  administr 

other,  and  <  such  by  B,  who  charg  d  him  with 

ive  as  assel  -  if  his  brother's  estate;  ami  it  was  si  i  adjusted 
by  the  court.     Th  rwards  got  back  into  the  hands  of 

r  i1    as   ad     ;-    ti  ator  of  a  person  claim- 
slave  under  the  title  of  G;    and  i     held,   that    H 
ert  the  title  under  C.     Houston  v.  Bibb,  5 
83. 

11.  Where  the  plaintiff  had  recovered  damages  in  an  action 
of  trespass    ,  fregit,   to  which  the  defendant  had 

1  '-not .  . guilty,"  and  lih/r.nn  /i-niinrnfri,;.''  and  afterward 
brought  ejectment  against  the  same  defendant  for  the  same  land, 
if  was  hem  that  the  defendant  was  not  estopped  to  deny  the 
plaintiff's  title,  for  it  was  the  defendant's  title,  and  not  the  plain- 
tiff's, which  was  put  in  issue  in  the  first  action,  and  in  ejei  tment 
the  plaintiff  must   recover   upon  the  strength  of  his  own,  and 


408  ESTOPPEL.— I.-II. 

not  the  weakness  of  the  defendant's  title.  Stokes  v.  Fraley,  5. 
Jones,  377. 

12.  Where  a  defendant  in  an  action  of  ejectment  has  been 
evicted  under  a  judgment  and  writ  of  possession,  he  is  not  es- 
topped, on  making  an  actual  entry,  from  maintaining  an  action 
of  trespass  qua/re  clausum  /regit,  and,  on  showing  title,  he  may 
recover  for  trespasses  committed  after  the  termination  of  the 
former  suit.      White  v.  Cooper,  8  Jones,  48. 

13.  Where  the  person  "who  has  been  thus  evicted,  enter- 
ed into  possession,  he  will  notwithstanding  the  presence  of 
the  pffcty  who  evicted  him,  be  considered,  by  the  jus  postli- 
minii,  to  have  been  in  possession  all  the  time  from  and  after  the 
date  of  the  eviction.     Ibid. 

14.  Where  an  administrator  petitioned  for  the  sale  of  his  in- 
testate's land,  setting  forth  the  number  and  amount  of  the 
debts  existing  against  the  estate,  and  a  decree  passed  for  such 
sale,  in  a  suit  by  an  administrator  de  bonis  non  to  recover  a  sur- 
plus over  and  above  the  debts,  it  was  held,  that  the  decree  did 
not  estop  the  persons  entitled  to  the  surplus,  from  showing  the 
true  amount  of  the  debts,  although  they  had  been  made  parties 
to  the  petition.     Latta  v.  Rum  8  Jones,  111. 

15.  All  the  parties,  to  a  suit  in  equity  for  the  partition  of 
slaves,  are  estopped  to  deny  the  right  of  each  other  taking  under 
the  decree.     Dixon  v.   Warters,  8  -Jones,  4  19. 

16.  A  person,  who  has  made  a  deed  of  gift,  void  by  the  act  of 
1806  (Rev.  (.'ode,  eh.  ">0,  see.  12,)  is  not  estopped  by  the  record 
of  a  partition  of  the  slaves  in  a  suit,  some  of  the  parties  to 
Which,  being  minors  and  his  wards,  sued  by  him  as  their  guar- 
dian.    Branch  v.  Goddin,  2  Winst",  10.3. 

See  (Arbitration  and  Award — Construction  of  submissions 
and  awards,  7.)  (Grant — How  and  when  grants  may  be  avoid- 
ed, 14.)     (Recognizance,  24.) 

H.       BY    DEED. 

1.  A  defendant  in  ejectment,  to  rebut  the  plaintiff's  title,  pro- 
duced sealed  articles  of  agreement,  by  which  the  plaintiff  bound 

.himself  to  convey  the  land  to  the  defendant  on  payment  of  the 
price,  held  that  the  plaintiff  was  not  estopped  by  the  articles, 
though  under  seal,  for  they  did  not  amount  to  a  deed  for  further 
assurance.     Anonymous,  1  Hay.  331,  (380.) 

2.  Estoppels  run  between  parties  and  privies;  therefore,  when 
defendant  formerly  claimed  by  deed,  under  the  person  the  plain- 
tiff now  claims  under,  he  may  now  deny,  as  against  the  plaintiff, 
that  such  person  had  title,  and  he  is  not  estopped  as  against  the 
plaintiff,  who  is  neither  party  nor  privy  to  the  defendant's  deed, 
though  had  defendant  produced  that  deed  on  the  trial,  it  would 
have  estopped  him.     Gray  v.  Harrison,  2  Hay,  292,  (477.) 


ESTOPPEL.— II.  409" 

3.  A,  having'  entered  a  fa-act  of  land,  conveyed  it  to  B  in  1780, 
and  to  G  in  1784.  In  1782  the  land  was  surveyed,  and  the  grant 
from  the  State  issued  to  A  in  1792.  C,  upon  his  purchase, 
entered  and  kept  possession  for  seven  years  before  the  grant 
issued,  and  then  B  brought  ejectment  against  him  lor  the  land, 
hdd  that  he  could  not  recover;  for  though  A  might  be  estopped 
to  claim  against  him,  yet.  as  there  was  no  pivity  between  him 
and  ( '.  the  latter  was  not  estopped.  A  court  of  law  cannot  take 
any  notice  of  B's  title  in  an  ejectment,  against  any  person  but 
A,  who  would  be  estopped  to  deny  it.  Langston  v.  McKinnie, 
-2  Murph.,  (i7. 

4.  Executors  are  not  estopped  to  claim  lands  in  a  deed,  which 
they  have  endorsed  and  attempted  to  confirm,  under  an  express 
reference  to  the  powers  confided  to  them  by  the  will  of  the 
testator.     Hendricks  v.  MendenhaU,  2  Car.  L.  L\,  569;  (371.) 

5.  A  being  much  indebted,  with  a  view  to  defraud  his  cred- 
itors, exchanged  a  negro  girl  with  B  for  a  hoy,  who  was  con- 
veyed by  a  hill  of  sale  to  A's  son.  Afterwards  C  purchased  the 
boy  of  A  and  sold  him  to  B,  who  sold  him  to  the  defendant,  In 
an  action  for  the  slave  brought  by  A's  infant  son  against  the 
defendant,  it  was  hdd  that  he  was  not  estopped  by  the  bill  of' 
sale  from  B  to  the  plaintiff,  from  showing  that  the  conveyance  - 
Was  fraudulent,  and  that  he  was  a  bonafide  purchaser.     Moore  v. 

WUHs,  2  Hawks,  555.  _ 

6.  A  witlow  remaining  in  possession,  as  such,  of  lands  occupied 
by  her  husband  in  his  life  time,  is  hound  by  an  estoppel  which 
bound  her  husband.  BuJferJow  v.  Newsom,  1  Dev.,  208,  S.  P.. 
Gor/iiim  v.  Brenon,  2  Dev.,  171. 

7.  A  jury  cannot  find  against  an  estoppel,  and  if  they  do  the- 
court  will  disregard  the  verdict,  except  where  the  parly,  entitled 
to  the  benefit  of  the  estoppel,  has  waived  it  by  mispleading.. 
Ibid. 

8.  A  sheriff's  deed  for  land  sold  by  execution,  passes  the 
estate  by  estoppel  against  the  defendant  in  the  execution.  Gor- 
hani  v.  Brenon,  2  Dev.,  174. 

9.  One  claiming  title  under  a  party,  who-  is  estopped  to  deny 
the  title  of  the  plaintiff,  is  also  bound  by  the  estoppel.  Phelps 
v.  Blounf,  2  Dev.,  177. 

10.  Neither  party  to- a  deed  of  bargain  and  sale  is  estopped  to 
show  that  one  of  the  bargainors  was  a/erne  soZe,.  although  the 
deed  recites  that  she  was  covert.  Brinegar  v.  Cliqffm,  3 
Dev.,  bis. 

A  party  to  a  deed  is  not  estopped  by  a  recital,  unless  the  fact 
recited  lie  the  moving  cause  for  the  execution  of  the  deed.  As 
if  the  recital  he  that  he  is  seized  in  fee  by  purchase  from  C,  here 
neither  the  bargainor  nor  the  bargainee  is  estopped  from  averring 
and  proving  that  he  is  seized  by  purchase  from  D,  unless  it 
appear  that  the  seizin,  in  fee  by  purchase  from  0  was  part  of  the 


410  ESTOPPEL.— II. 

contract,  without  which  it  would  not  have  been  made ;  for  ordi- 
narily the  seizin  only  is  of  the  essence  of  the  contract,  and  how 
and  from  whom*  derived  are  only  circumstances.    Ibid. 

12.  If  any  interest,  however  small,  passes  by  a  deed,  it  creates 
no  estoppel.     Ibid. 

13.  Where,  to  debt  on  a  bond  for  the  payment  of  purchase 
money,  the  defendant  pleaded  performance,  and  offered,  in  proof 
of  his  plea,  an  acknowledgment  of  payment  and  a  release  in  a 
bill  of  sale,  it  was  held,  that  as  he  had  not  pleaded  the  release 
specially,  it  was  mere  evidence,  and  the  plaintiff  was  not  estopped 
to  prove  the  contrary.      Woodhouse  v.  Williams,  3  Dev.,  508. 

14.  He  who  relies  upon  an  estoppel  must  plead  it  specially, 
or  the  jury  may  find  the  truth.  But  if,  from  any  cause,  the 
estoppel  cannot  be  pleaded,  the  jury  are  bound  by  it.     Ibid. 

15.  An  assignment  of  a  term,  like  any  other  conveyance,  may 
take  effect  by  estopel  between  parties  and  privies,  and  thus 
legally  operate  to  transfer  the  estate  of  the  assignor,  although 
he  was  not  in  possession  when  the  assignment  was  made.  Givyn 
v.  Wellborn,  1  Dev.  and  Pat.,  313. 

16.  A  person,  claiming  title  under  one  who  is  estopped,  will 
also  be  estopped.     Sikcs  v.  Busniqlit,  2  Dev.  and  Bat.,  157. 

17.  He,  who  claims  land  by  estoppel,  is,  as  to  those  estopped, 
in  the  constructive  possession  of  the,  land;  and,  in  an  action  of 
trespass,  no  one,  who  is  bound  by  the  estoppel,  can  prove  a  su- 
perior title  in  a  stranger,  unless  the  court  be  satisfied  that  such 

ser,  at  the  time'  he  enti  it  claim  title  under  the 

by  which  he  is  estopped;  in  which  case  the  evidence  would  ' 
jbe"  admissible  to  show,  that  he  was  accountable  in  damages  to 
the  stranger  who  had  the  better  title,  and  not  to  the  plaintiff. 
Ibid. 

18.  Where  a  party  is  estopped  by  his  deed,  all  persons,  claim- 
ing under  or  through   him,  are  equally  bound  by  the  estoppel. 

.  llexandt  r.  4  I  lev.   >   d  Bat.,  40. 
19L  An   agreement,  made    '■■;    bwo  p      ons   in  possession  of  a 
tract  of  land,  under  a  joint        ■    '  ;>    which  they  acknowl- 

edged under  their  hands  ami  seals,  that  they  were  tenants  in 
common  of  all  the  lands  which  they  had  purchased  from  their 
said  vendor,  estops  both  of  them  from  denying  that  their  ven- 
dor had  title  to  the  land,  and  also  estops  each  from  averring  any 
antecedent  matter  to  show  that  the  other  had  no  title.  Boss  v. 
Durham,  4  Dev.  and  Bat,  54. 

20.  The  State  is  not  bound  by  an  estoppel,  nor  is  a  grantee 
from  the  State  estopped  from  averring  what  the  State,  from 
whom  he  claims,  is  at  liberty  to  assert.  Candler  v.  Immsford,  4 
Dev.  and  Bat.,  407. 

21.  Where  the  husband  of  a  woman,  wdro  was  entitled  to  a 
contingent  remainder  in  slaves,  before  the  contingency  happened 
conveyed  the  interest  by  deed,  it  mas  held,  that  the  deed  was  an 


ESTOPPEL.— II.  411 

estoppel  to  the  husband  and  that,  when  the  contingency  after- 
wards happened,  in  the  life  time  of  the  husband,  by  which  the 
interest  became  vested,  such  interest  passed  to  the  grantee, 
either  upon  the  principle  that  the  interest,  when  it  accrued,  fed, 
the  estoppel,  and  thereby  gave  an  absolute  title,  or  that  the  deed 
operated  as  a  release  of  the  wife's  clwse  In  action.  Fortescue  v. 
Satterthwaite,  1  Ired.,  566. 

22.  A  deed  not  only  estops  the  grantor,  but  all  who  claim 
under  him.     Gilliam  v.  Bird,  8  Ired.,  280. 

23.  The  doctrine  of  estoppel  does  not  apply  to  the  sovereign, 
nor  to  the  assignee  of  the  sovereign.  Wallace  v.  Maxwell,  10 
Ired.,  110. 

24.  Where  one  conveyed  to  a  trustee,  for  the  purpose  of  paying 
his  debts,  all  his  interest  in  the  goods  in  a  certain  store,  his 
books,  notes,  accounts,  &c,  and  the  trustee  sold  the  whole  at 
public  sale  fir  a  price  upon  which  he  fixed;  it  was  held,  that  the 
person,  who  made  the  conveyance,  being  present  at  the  sale 
and  not  objecting,  was  bound  by  it,  at  least  at  law,  however 
irregular  the  sale  may  have  been.  Lamb  v.  Good/win,  10  Ired., 
320. 

25.  Estoppels  must  be  mutual,  and  bind  only  parties  and 
privies.     One,  who  is  not  bound  by  an  estoppel,  cannot  take  ad- 

"  of  it.     Griffin  v.  Richardson,  11  Ired.,  439. 

26.  Where  A  conveyed  land  to  B,  and  subsequently  remained 
i'i  tJ    ■  actual  adverse  possession  for  more  than  seven  years,  it 

!,  that  A  was  estopped  from  recovering,  unless  he  could 
show  some  c  lor  of  title  acquired  after  his  conveyance  to  B,  and 
that   his  ion  was  under  that  color  of  title. 

Farlow,  13  Ired.,  84. 

27.  If   A   could   have   shown  that    his  colorable   title  and 

d  after  his  deed  to  B,  that  deed 
would  not  have  estopped  him;  because  the  title  so  claimed 
would  not  have  b  i  lent  with  that  he  conveved  to  B. 

Ibid. 

28.  A  "widow  continuing  in  possession  of  land  is  estopped  to 
deny  the  title  derived  under  her  husband's  deed. 

221. 

29.  0  equallj  ■;  ipped  as  to  two  adverse  claimants, 
so  as  to  lie  concluded  when  sued  by  either.  Thus,  where  a 
widow,  in  possession  claiming  dower,  was  estopped  by  a  deed 
given  by  her  husband,  she  cannot  remove  the  estoppel  and 
defeat  the  1  i  u  i  g  up  her  possession  to  one  claiming 
under  a  ,  rior  to  the  deed,  and  then  immediately  resurjag 
ing  the  poss   ssi  >n  under  him.     Ibid. 

30.  Where  A  takes  a  deed  from  B,  for  apart  of  a  tract  of 
land,  they  are  botH  estopped  by  such  deed  from  denying  that  B 
had  title  as  to  that  part,  and  that  it  passed  to  A;  but  such  es- 
toppel does  not  extend  to  the  other  part  of  B's  land.     In  an 


412  ESTOPPEL.— II, 

action,  therefore,  against  A  for  trespassing  on  this  omitted  part, 
B,  in  order  to  recover,  must  show  some  other  and  better  title 
than  can  be  derived  from  the  estoppel,  if  he  have  no  actual 
possession  of  the  locus  in  quo.  Kissom  v.  Oaylord,  1  Jones, 
294. 

31.  If  land  be  sold  under  a  justice's  execution,  and  do  not 
bring  enough  to  pay  the  debt  mentioned  in  the  execution,  it 
cannot  be  again  levied  on  and  sold  under  a  judgment  of  the 
court,  entered  for  the  residue  of  the  debt,  under  the  act,  Rcv~ 
Stat.,  ch.  45,  sec.  9,  and  if  the  vendee  of  the  purchaser  lie  ad- 
mitted to  defend  as  landlord  in  ejectment  against  the  debtor,  the 
rule  estopping  him,  or  his  landlord  defending  in  his  stead,  from 
denying  the  purchaser's  title,  acquired  under  the  sheriff's  deed, 
does  not  apply  in  favor  of  the  purchaser  under  the  second  wale, 
Smith,  v,  Wore,  1  Jones,  488. 

32.  A  husband,  who  lias  a  remainder  in  slaves,  in  right  of  his 
wife,  after  a  life  estate  in  another,  cannot  pass  the  title  during 
the  life  estate;  but  if,  during  such  life  estate,*the  husband  and 
wife  make  a  deed  for  the  slaves,  ami  afterwards  the  life  estate 
fall  in,  the  wife  being  still  alive,  the  title  will  enure  to  the 
benefit  of  the  grantee,  by  relation  back,  and  will  thus  be  per- 
fected in  him  by  estoppel.     Barwick  v.   Wood,  .'i  Jones,  306. 

33.  To  raise  an  estoppel  the  admission  must  be  certain.  An 
estoppel,  as  a  general  rule,  does  not  grow  out  of  a  recital;  and 
to  give  it  that  effect,  it  must. show  that  the  object  of  the  parties 
was  to  make  the  matter  recited  a  fixed  furl,  as  the  basis  of  the 
action  of  the  parties.     Hays  v.  AsJcew,  5  Jones,  63. 

34.  Where  a  person  made  a  deed  to  another,  purporting  to  con- 
veya  life  estate  in  an  unoccupied  lot  of  land,  and  the  life  tenant 
conveyed  the  same  in  fee  simple;  it  was  held  that  such  purchaser 
was  not  estopped,  by  the  rule  in  ejectment  that  where  both  par- 
ties claim  under  the  same  person  neither  shall  deny  his  title, 
from  denying  the  title  of  the  first  vendi  »r,  except  as  to  a  life  estate, 
unless  it  be  made  to  appear  that  he  had  a  deed  for  the  land,  purl 

{lorting  to  convey  him  a  fee,  or  that  he  was  in-  possession  of  the 
and  claiming  it  in  fee.      Worsley  v.  Johnson,  5>  Jones,  72. 

35.  A  party,  who  is  estopped  by  his  own  deed  produced  against 
him,  cannot  show  a  better  title  acquired  by  him  from  another 
person,  subsequently  to  the  execution  of  his  deed.     HasseU  v. 

WaUcer,  5  Jones,  270. 

36.  The  distinction  in  the  particular  above  stated  between  the 
case  of  a  strict  estoppel,  and  that  of  the  rule  in  ejectment,  that 
where  both  parties  claim  under  the  same  person  neither  shall 
deny  his  title,  pointed  out  and  explained.     Ibid. 

37.  Where  a  husband  and  wife  joined  in  a  deed,  purporting  t<< 
convey  a  legal  estate  in  fee  in  tin:  wile's  land,. in  which  he  then 
had  no  interest,  and  the  deed  of  the-  wife  was  inoperative  tor 
the  want  of  a  privy  examination,  it  wots  held  that  the  assignment 


ESTOPPEL.— II.-III.  413 

* 

to  the  "wife  of  a  term  that  had  been  carved  out  of  the  estate  (the 
reversion  in  ice  being  then  in  trustees,)  vested  the  term  in  the 
hushaii  1,  juts  mariti,  and  fed  an  estoppel  created  by  the  deed 
of  the  husband.      Wellborn  v.  Finley,  7  Jones,  228. 

38.  .V  deed  l>y  B  and  Ins  wife,  reciting  a  conveyance  of  the 
legal  estate  A,  a  mesne  conveyance  to  trustees  in  trust  for 
a  daughter  of  A,  a  marriage  of  B  with  the  daughter,  and  recit- 
ing also  that  the  bargainees  were  empowered  by  act  of  assembly 
to  purchase  land  for  a  town  site,  but  which  is  silent  as  to  whether 
the  trustee  had  conveyed  the  legal  estate  to  the  feme,  and  which 
then  proceeds  to  "to  give,  grant,  &c,"  the  land  itself,  in  the  usual 
form,  toasheld  to  purport  a  conveyance  of  the  legal  estate.    Ibid. 

39.  Where  -V  conveyed  a  tract  of  land,  to  which  he  had  at  the 
time  no  title,  but  afterwards  obtained  a  deed  for  it,  and  took 
actual  possession  of  it.  which  he  held  adversely  for  more  than 
seven  years  against  all  the  world;  ii  was  field  that  the  grantee 
had  acquired  a  title  to  the  land  by  estoppel,  but  had  again  lost 
it  by  A's  adverse  possession  for  more  than  seven  years.  Eddie- 
man  v.  Carpenter,  7  Jones,  616. 

40.  Whtre  it  is  shown  that  the  deed,  offered  by  one  of  the  par- 
ties in  ejectment,  claiming  under  the  same  person  with  the 
other,  is  void,  he  is  not  estopped  from  denying  the  title  of  the 
other  party.     McDougaM  v.  McLean,  1  Winst,  120. 

See  (Deed— Of  the  execution  and  date  of  a  deed,  3.)  (Deed— Of 
the  construction  of  deeds  and  their  varii  >ns  parts,  6.)  (Ejectment 
— ( >f  the  title  necessary  to  support  the  action,  59.)  (Evidence 
— Parol  evidence,  when  admissible,  13.)  (Execution — What 
may  be  levied  on  and  sold  under  execution,  40.)  (Grant — How 
and  when  grants  may  be  avoided,  14.)  (Husband  and  Wife — 
How  far  the  husband  is  bound  by  the  acts  of  his  wife,  before 
and  after  marriage,  2-3.)  (Release,  1-9.)  (Tenants  in  com- 
mon, 12.) 

III.   RV  MATTER  OTHER  THAN  IiV  RECORD  OR  DEED. 

1.  If  one  tenant  in  common  recover  a  judgment  againt  a  co- 
tenant,  and  direct  the  execution  to  be  levied  upon  a  particular 
part  of  the  land,  he  is  estopped  to  claim  a  partition  against  the 
purchaser.      JValbrv.  Barnard,  Conf.  Pep..  82,(214.) 

2.  Where  both  parties  claim  under  the  same  person,  they  are 
privies  in  estate,  and  cannot,  as  such,  deny  his  title.  Therefore, 
where,  in  an  ejectment,  it  appeared  that  the  defendant  had  ac- 
cepted adeed  from  the  person  underwhom  the  plaintiff  claimed. 
he  was  held  estopped  to  deny  title  in  such  person.  Murphy  v 
Barnett,  2  Murph.,  251,  S.  0.1  Car.  L.  R.,  106,  (14.) 

3.  He  who  accepts  a  lease,  and  those  claiming  under  him,  are 
estopped  during  the  continuance,  from  denying  the  title  of  the 
lessor.     Sacarusa  v.  King,  2  Car.  L.  P.,  451,'  (336.) 


414  ESTOPPEL.— III. 

4.  One  who  hires  a  negro  from  another,  and  thereby  has  ob- 
tained possession  oi  the  negro,  shall  not  dispute  the  right  of  the 
hirer,  until  he  has  restored  the  poss  ssion.  Dmaooodie  v.  Car- 
rington,  2  Car.,  L.  R.,  469,  (355.) 

5.  A  sale  or  pli  dge  of  personal  property,  by  one  who  has  no 
title,  in  the  presence  of  foe  owner,  without  objection  on  his  part, 
estops  the  latter  from  impeaching  the  transaction  on  the  ground 
of  his  better  title.     Bird  v.  Benton,  2  Dev.,  179. 

6.  The  doctrine  of  estoppel  has  been  beneficially  applied  to 
prevent  tenants  from  denying  the  titles  of  their  landlords,  dur- 
ing the  continuance  of  the  lease,  and  also  of  the  po 
gamed  under  it;  but  the  estoppel  is  dependent  upon  the  estate 
and  the  possession  consequent  upon  it;  and  after  the  lease  has 
expired,  and  the  possession  fairly  surrendered,  the  lessee  is  re- 
mitted to  any  title  he  hadin  the  land,  before  the  relation  of  land- 
lord and  tenant  commenced.     Smarts.  Smith,  2  Dev.,  258. 

7.  Estoppels  are  not  favored,  and  particularly  those  which 
arise  from  the  mere  act  of  a  party,  and  from  which  a  conclusion 
of  law  is  inferred.      Yarborough  v.  Harris,  3  Dev..  40. 

8.  The  rule  that  a  tenant  or  bailee  cannot  dispute  the  title  of 
his  landlord  or  bailor,  without  surrendering  the  possession,  is 
founded  on  a  principle  <A  morality,  which  dors  not  permit  pos- 
session to  be  retained,  in  violation  of  the  faith  upon  which  it 
was  acquired.  But  ifj  during  the  possession  under  a  bailment; 
the  bailee  is,  by  act  of  law,  vested  with  an  office,  the  duties  of 
which  require  him  to  dispute  the  title  of  his  bailor,  he  is  remit- 
ted to  the  title  thus  acquired,  and  may,  without  breach  of  faith, 
retain  the  possession.    Ibid.    S.  P.  Bjimett  v.  Roberts,  4:Dev.,  81. 

9.  A  mortgagor  of  a  chattel,  haviiigj  the  right  of  possession 
for  a  stipulated  p<  riod,  cannot,  alter  the  expiration  of  that  period, 
dispute  the  title  of  the  mortgagee;  and  ($*•  same  ride  applies  to 
his  vendee.     Holmes  v.  gaff,  3  Dev.  9&  jjp 

10.  A  cestui  qm  trust,  who  obtained  possession  in  that  charac- 
ter, is  not  permitted  at  law  to  deny  the  title  of  the  trustee.  And 
9  h  re  he  has  admitted  it  by  a  parol  declaration,  a  purchaser  un- 
der the  trustee  is  not  bound  to  prove  the  title  of  the  latter. 
White  v.  Albertson,  3  Dev..  241. 

11.  Although  a  bailee  is  estopped  from  disputing  the  title  of 
his  bailor,  yet  if  the  bailor  has,  by  his  own  showing,  no  title,  he 
cannot  recover.     MoMpy  v.  Runnelflt,  3  Dev.,  303. 

12.  A  person,  who  has  title  to  a  slave,  will  not  be  estopped,  by 
reason  ot  any  concealment  or  misrepresentation  of  that  title, 
from  setting  it  up  against  one  who  claims  as  a  volunteer.  Jones 
v.  Sasser,  1  Dev.  and  Bat.,  452. 

13.  The  title  to  slaves  cannot  be  transferred,  without  consid- 
eration, 1  ly  virtue  of  an  estoppel  arising  from  the  misrepresen- 
tation of  the  owner,  as  that  would  be  in  contravention  of  the  act 
of  1806,  which  requires  gifts  of  slaves  to  be  in  writing,  and  an 


ESTOPPEL.— III.  415 

estoppel  cannot  be  set  up  to  defeat  the  statute.  Hid.  (See 
Rev.  (.'ode.  ch.  37,  sec.  17.) 

14.  A  person  iu  possession,  under  a  claim  of  title,  who  receives 
from  an  opposing  claimant  a  lease  for  a  year  of  the  same  land, 
cannot,  during  that  term,  dispute  the  lessor's  title,  or  hold  ad- 
versely to  him.     Hartzog  v.  Hubbard,  2  Dev.  and  Bat,  241. 

15.  It  is  a  general  rule,  that  a  tenant  shall  i  rer  be  ]  ermitted 
to  controvert  or  raise  objections  to  his  landlord's  title;  and  this 
rule  extends  to  all  parties  claiming  under  the  lessor  or  1. 

that  the  lessee's  assignee  or  under  tenant  cannot  object  to  the 
title  of  the  lessor  or  his  assignee,  am  mure  than  the  lessee  him- 
self could.     Li  nsford  v.  Alexander,  4  Dev.  and  Bat.,  Mi. 

1G.   Where  both  parties  to  a  suit  claim  title  under  the  same 
•,  it  is  not  competent  to  either  so  claiming  to  deny  the  title 
of  that  person,     /re*  v.  Sawyer,  4  )  I  -v.  and  Bat.,  51. 

17.  A  tenant  cannot,  by  merely  ceasing  to  pay  his  rent  to  his 
li  '.  and  paying  it  to  another  person,  change  the  tenancy,  so 
as  to  enable  himself  to  dispute  the  title  bl'his  landlord,  in  action 
of  ej  cl  't  by  the  latter  to  regain  the  possession.  Bdfonr  v. 
!>■  vis,  4  Dev.  and  Bat.,  300. 

18.  J  he  possession  of  a  part  of  a  tract  of  land,  which  one 
claims,  is  the  possession  of  the  whole,  and.  if  while  thus  in  pos- 
session cultivating  a  part,  he  makes  a  parol  contract  to  buy  the 
land  of  another,  who  also  sets  up  a  claim  to  it,  and  afterwards 
extends  the  fields  which  he  had  in  cultivation,  he  cannot  he  con- 
sidered the  tenant  of  the  other,  so  as  to  estop  him  from  dispu- 
ting his  title;  for  an  otter  to  buy  a  claim  to  land,  which  one 

-  as  his  own.  may  be  made  for  the  sake  of  peace,  through 
alarm  or  from  misapprehension;  and  so  far  from  being  conclusive 
of  the  title,  is  very  slender,  if  any,  evidence  of  it.  Hough  v. 
Duihas,  4  Dev.  and  Bat.,  328. 

19.  One  claiming  under  a  husband  is  estopped  from  showing 
title  out  of  the  husband  and  in  a  third  person,  to  defeat  the 
wife's  claim  of  dower,  nor  can  he,  lor  such  purpose,  avail  him- 
self of  a  conveyance  obtained  from  such  third  person,  subse- 
quently to  the  commencement  of  the  suit  and  his  plea  thereto. 
Norwood  v.  Morrow,  4  Dev.  and  Bat.,  442. 

20.  Where  both  parties  claim  under  the  same  person,  the  title 

i  person  i<  not  to  be  disputed  between  them,  unless  one  of 
them  can  show  a  better  title  in  himself.     1  bid. 

21.  The  rule,  that  a  lessee  is  estopped  to  dispute  his  landlord's 
title,  extends  to  the  case  of  one  who  takes  possession  under  a 
contract  of  purchase;  he  cannot  controvert  the  title  of  one  who 
lets  him  into  possession.     Love  v.  Edmonston,  1  Ired.,  152. 

22.  Neither  "the  tenant  of  land,  nor  any  person  claiming  title 
by  or  through  him,  can  dispute  the  title  of  the  landlord  to  re- 
cover the  premises  in  ejectment,  after  the  expiration  of  the  lease 


416  ESTOPPEL.— III. 

upon  the  ground  of  a  defect  of  title  in  the  landlord.     Calender 
v.  Sherman,  5  Ired.,  711. 

23.  Where  A  is  the  legal  owner  of  a  tract  of  land,  and  leases 
it  to  B,  though  the  agreement  for  the  lease  may  be.  usurious,  yet 
B  is  estopped,  in  an  action  of  ejectment  against  him  by  A's  heirs, 
from  denying  the  title  of  A.     King  v.  Murray,  6  [red.,  02. 

24.  It  is  an  inflexible  ride,  that  whenever  both  parties  claim 
under  the  same  person,  neither  of  them  can  deny  his  right,  and 
thru,  as  between  them,  the  elder  is  the  better  title  and  must 
prevail.     Gilliam  v.  Bird,  8  [red.,  280. 

25.  A  street  in  a  town,  or  any  other  highway,  though  now 
dedicated  to  the  use  of  the  public,  may  have  been,  and  probably 
was,  once  the  subject  of  private  property,  and  therefore  the  or- 
dinary doctrine  of  estoppel  will  apply  to  it.     Ibid. 

26.  Where  an  owner  of  a  slave  stands  by  and  sees  the  slave 
sold  by  another,  and  makes  no  objection,  yet  he  is  not  thereby 
estopped  from  asserting  his  legal  title.  West  v.  Tilghman,  9 
Ired.,  163. 

27.  Where  a  grandfather,  since  the  act  of  1806,  made  a  parol 
gift  of  a  slave  to  his -rand-daughter,  and  plaoed  him  in  posses: 
sion  of  the  grand-daughter's  father,  (with  whom  she  lived,)  as  her 
property,  andthejslave  was  always  alleged  by  the  father  to  belong 
to  the  grand-daughter;  it  was  Jield  that  the  father,  and  of  course, 
every  person  claiming  under  him,  were  estopped  to  deny  the 
grand-daughter's  title1.     Tarhington v.  Latham,  11  Ired.,  596. 

28.  The  owner  of  a  tract  of  land  purchased  at  the  Cherokee 
sales  is  estoppel  to  deny  tin.'  right  of  one,  who  has  bought  at  a 
sale  under  an  execution  against  him,  though  such  purchaser  at 
tlie  Cherokee  sales  has  not  yet  paid  the  State,  and,  therefore, 
has  acquired  no  legal  title.     Hansuckr  v.  Tipton,  13  Ired..  si. 

29.  A  lessee  cannfef  deny  his  lessor's  title,  until  he  is  dis- 
charged from  the  estoppel  arising  out  of  his  lease  and  posses! 
sion,  by  yielding  up  possession  to  his  lessor.  His  acceptance  of 
a  lease' from  another  and  acknowledgment  of  possession  under 
him  will  not  discharge  the  estoppel.  He  may  be  equally  estopped 
as  to  each.     Freeman  v.  Heath,  13  Ired.,  498. 

30.  The  doctrine  of  estoppel,  as  between  landlord  and  tenant, 
does  not  apply  to  the  la  iter,  when  he  has  been  evicted  and  sub- 
sequently let  into  possession,  by  a  neAV  and  distinct  title  under 
another  landlord.      Gilliam  v.  3Ioore,  Bush.  95. 

31.  Where  A  conveyed  to  B  by  deed  of  mortgage,  A  retain- 
in--  the  possession  of  the  land,  which  was  afterwards  soldi  under 
execution  for  his  debt,  and  purchased  by  C,  who  entered,  and 
nearly  two  years  subsequent  thereto  demised  the  land  to  A,  un- 
der a  contract  for  the  sale  of  it;  it  teas  held,  in  a  suit  by  B 
against  A,  that  the  latter  was  not  estopped  from  disputing  the 
title  of  the  former,  and  that  seven  years  possession,  under  color 
of  C's  title,  was  a  good  defence  to  the  action.     Hid. 


ESTOPPEL.— III.  417 

82.  An  agreement  made  by  a  junior  grantee,  in  relation  to  his 
possession  of  part  of  his  land  covered  by  an  older  grant,  with 
the  widow  of  the  older  grantee  who  continued  in  possession 
after  the  death  of  her  husband;  is  evidence  that  she  had  an  in- 
terest in  the  land,  and  had,  therefore,  the  right  to  make  the 
agreement;  and,  at  all  events,  the  junior  grantee,  and  those 
claiming  under  him,  are  estopped  from  calling  that  matter  in 
question.     P>,-ii<v,i  v.  Slagle,  l'>usl>.,  44'J. 

33.  Although  the  rule  is  thai  where  both  parties  claim  title 
linder  the  same  person,  each  is  estopped  from  denying  that  such 
person  ha  1  title,  yet  this  rule  does  nut  prevail,  where  one  ofthe 

can  show  a  1  letter  title  in  himself.     Copeland  v.  Sauls,  1 
Jones,  70. 

34.  When  both  plaintiff  and  defendant  in  ejectment  derive 
title  under  a  person,  once  in  possession,  claiming  the  fee  in  the 
bad  of  land  m  controversy,  neither  is  at  liberty  to  show  that 
such  title  is  not  still  a  good  and  subsisting  one,  unless  one  of 
the  parties  can  show  thai  he  has  acquired  another  and  a  better 
title  from  seme  ether  person.     Johnson  v.  Watts,  1  Jones,  228. 

35.  Where  a  pers  in  enters  into  a  tract  of  laud,  under  :i  writ- 
ten contract  to  purchase  it,  he  becomes  a  tenant  at  will  to  the 
bargainor,  and  is  estopped  from  denying  his  title  in  an  action 
uf  ejectment  brought  against  him  to  recover  the  possession. 
Dowd  v.  Gilchrist,  1  Junes.  ;;.">;!. 

3G.  In  ejectment,  where  A  and  B  both  attempted  to  show  title 
under  < '.  and  the  jury  found  that  the  dee  1  to  II  had  never  been 
ed,  it  was  held  that  B  could  not  be  permitted  to  show- 
that  C  had  conveyed  the  land  in  question  to  another  person,  be- 
fore he  convey  d  to  A;  and  this,  not  upon  the  ground  of  there 
being  a  technical  estoppel,  but  because  it  was  a  rule  of  justice 
and  convenience.  Thomasv.  Kelly,  1  Jones,  375. 
37.  i  parties  in  an  action  of  ejectment  claim  under 

er  can  deny  the  title  of  such  person ;  and 
this  rule  is  net  excluded  by  the  fact,  that  one  of  the  parties 
claims  under  a  sheriff's  deed.  Feimster  v.  McRorie,  1  denes, 
547 

The  rule  adopted  in   the  action  i  I  .  thai  where 

-  claim  under  th  the  same- person,  neither 

shall  deny  th      I  tie,  does  not  forbid   the  defendant  from  show- 
ing, tl  i  dntiffhad  got  his  conveyance,  which  was 
ill,  from  such  person,  he  had  conveyed  to  the  de- 
it,  though  without  consideration,  and  thai    tie,  the  defend- 
ant, had  conveyed  to  a  third  person,  for  a  full  and  valuable  con- 
i en   without   notice  ofthe  plaintiff's  rights.     Newlin   v. 
-ins.  163. 
39.    Where  both  parties  to  a  suit  claim  under  the  same  person, 
neither  can  be  heard   to  deny  that    person's   title,   and   the  de- 
fendant cannol   defend  himself  by  showing  a  paramount   title 
27 


418  ESTOPPEL.— III. 

outstanding,  unless  he  has  procured  that  title,  or  can,  in  some 
way,  connect  himself  with  the  true  owner.  Baswick  v.  Wood, 
3  .(ones,  306. 

40.  Where  plaintiff  and  defendant  both  claim  under  the  same 
title,  neither  can  deny  it.  And  where  a  party  is  in  possession 
of  land,  and  registered  deeds  are  produced  by  the  opposite  party, 
purporting  to  convey  to  him  the  land  in  question,  it  will  be  pre- 
sumed, prima  facie,  that  he  entered  and  holds  the  land  under 
such  deeds.     Register  v.  Howell,  3  Jones,  312. 

41.  It  would  seem,  where  the  taker  of  a  life  estate  in  a 
chattel,  under  a  will,  had  no  other  title  to  it  that  what  lie  derived 
from  the  will  and  the  executor's  assent,  that  if  he  accepted  the 
]  o  isession  as  a  legatee,  he  would  be  estopped  from  setting  up  a 
pretended  title  afterwards  in  opposition  to  the  title  of  the  exe- 
cutor,  or  the  ulterior  donee.  Hotchhiss  v.  Thomas,  6  Jones, 
537. 

42.  Where  both  parties  in  an  action  of  ejectment  claim  title 
under  the  same  person,  the  defendant  is  estopped  from  showing 
title  in  a  third  person,  unless  he  has  acquired  such  outstanding 
title,  or  connects  himself  with  it.  Brown  v.  Smith,  8  Jones, 
331. 

43.  Where  a  person  purchases  a  chattel  from  one  who  is  not 
the  owner  of  it,  and  it  is  admitted  by  the  parties,  or  found  by 
the  jury  as  n  fart,  that  the  purchaser  was  induced  to  make  the 
purchase  by  the  declarations  or  acts  of  the  true  owner,  the  lat- 
ter will  lir  estopped  from  impeaching  the  transaction.  Mason 
v.   WiMams}  8  Jones.  478. 

44.  A  person  who  uas  luade  a  gift  of  slaves,  which  is  void  bv 
the  act  of  1806,  (Rev.  Code,  eh.  50,  sec.  12,)  cannot,  lie  estopped 
from  asserting  his  title  to  the  slaves  by  any  act  in  pais.  Branch 
v.  Qoddin,  2  YVinst.,  10."). 

See  (Assumpsit — When  it  will  or  will  not  lie,  41.)  (Bailment, 
10.)  (Contract — Construction  of  contracts  and  when  an  action 
will  lie,  30-)  (1  >eed — Of  the  parties  to  a  deed,  and  the  custody 
thereof,  1.)  (Ejectment — Of  the  defence  and  herein  of  the  con- 
sent rule,  10—11.)  (Estoppel — By  deed,  24.)  (Execution — 
Levy,  sale  and  application  of  the  money  raised,  47.)  (Gifts — Of 
slaves  since  the  act  of  1806,  12.)  (Indictment — Plea  of  former 
acquittal  or  conviction,  11.)  (Justices  of  the  Peace — Of  their 
jurisdiction,  judgment  and  execution,  22.)  (Landlord  and  Ten- 
ant. 20-23.)'    (Tenants  in  common,  12-24.) 


EVIDENCE.— I. 


419 


KYI  HENCE. 


I.  Witnesses,   their  competency  or 

incompetency. 
II.  Subscribing    witness — proof    of 
handwriting. 

III.  Witnesses,  their  examination. 

IV.  Competency  of  a  witness  restor- 
er! by  a  release. 

V.   Impeaching  the  credibility  of  a 
witness. 
VI.  Depositions. 

VII.   Hearsay    and    common   reputa- 
tion. 
VIII.  In  vvjjat  eases  a  witness  may  ex- 
press an  opinion. 
IX    Proof  of  character 
X.  Testimony  inadmissible  for  irre- 
levancy. 
XI.  Privileged  and  confidential  com- 
munications. 
XII    Parol  evidence,    when   admissi- 
ble and  when  noty 
XIII.  Admissions,  declarations  and  acts 

of  parties,  privies  and  others. 
XI  f.  Public  documents. 
XV.  Statutes. 
XVI.  Records  of  events    the  proof  and 

effect  of  them. 
XVII.  Proceedings  in  other   suits,  when 
and  how  far  •■ 


XVIII.  Copies  of  deeds  and  other  instru- 
ments,   when   admitted  and  how 
proved. 
XIX.  Proof  of  official  bonds. 
XX.  Professional  books,  or  books  of 
science. 

XXI.  Books  of  original  entries,  ao- 
counts,  receipts,  orders,  checks, 
way  bills,  &c. 

XXII.  Laws  and  legal  proceedings  in 
other  States  and  countries. 

XXIII.  Evidence  in  eases  relating  to 
wills  and  testaments. 

XXIV.  Evidence  in  cases  of  malicious 
prosecution  and  slander. 

XXV.  Evidence  as  to  the   identity  of 
names. 
XXVI.  Evidence  in  criminal  proceedings 
and  indictments. 
XXV II.   Dying  declarations. 
XXVII!.  Who  to  decide  upon°the  com- 
petency of  evidence. 

XXIX.  Of  the  effect  to  be  given  to  tes- 
timony by  the  jury. 

XXX.  Presumptions. 

XXXI     Witnesses,  their  liabilities. 
XXXII.    Wltnessess,  their   compensation 
and  remedy  therefor. 


Notb — The  rules  of  evidence,  in  relation  to  the   competency  of  witnesses,   have 
bean  mate  I  by  an  act  of  tire  legislature  entitled   "  an  act  to  improve  the 

law  of  evidence,1' ratified  the  2nd  March,  1*66.  Incapacity  to  give  testimony  aris- 
ing from  interest  or  c:im?  is  removed,  aird  the  parties  to  a  suit  are  competent  and 
compellable  to  give  evidence,  with  certain  exceptions  specified  in  the  act  By  another 
act,  "concerning  negroes  and  persons  o!  color  or  mixed  blood,"  such  persons  are 
made  competent  to  testify  in  any  -nit  where  the  rights  of  person  or  property  of  per- 
sons of  color  are  put  in  issue. 


I.        WITNESSES,   THEIR    COMPETENCY    OB     INCOMPETENCY. 

1.  The  affidavit  of  a  person  convicted  of  an  infamous  offence 
may  be  heard  on  a  motion  to  remit  his  forfeited  recognizance. 
Hall  v.  Cox,  Mar.  24,  (12.) 

2.  So  it  may  be  on  a  motion  to  continue  his  cause.  Anony- 
mous v.  Eiml orongh,  Mar.  25,  (12.) 

;;.    Interest  in  the  event  of  the  question,  hut  not  of  the  cause, 


420  EVIDENCE.— I. 

■will  not  render  a  witness  incompetent,  Ferrcll  v.  Pen-)/,  Mar. 
27,  (16.)  S.  C,  1  Hay.,  2,  (2.)  S.  P.,Porierv.  MtClure,  1  Hay., 
360,  (413.)  Harrisonv.  Harrison,  2  Hay.,  355,  (5-15.)  Rowland  v. 
Rowland,  2  Ired.,  61.  (These  oases  overrule,  Starkey  v.  McClure, 
Mar.  73,  (75,)  and  Madox  v.  Hoshins,  1  Hay.,  4,  (7.) 

4.  A  slave  cannot  be  a  witness  against  a  free  negro.  Cox  v. 
Dove,  Mar.  43,  (35.)  (A  slave  is  now  a  competent  witness  for 
or  against  a  free  negro,  Rev.  Code,  eh.  107,  see.  71.) 

5.  A  person  entitled  to  a  reward,  offered  by  the  General  As- 
sembly, on  the  conviction  of  an  offender,  is  a  competent  witness 
against  such  offender.     State  v.  Coulter,  1  Hay.,  3,  (4.) 

6.  The  wile  of  a  person,  interested  in  the  event  of  the  ques- 
tion but  not  of  the  cause,  is  a  competent  witness.  Porter- v, 
McGlure,  1  Hay,  360,  ("413. ) 

7.  In  an  indictment  for  perjury  in  swearing  to  attendance  as 
a  witness,  the  prosei  utor  is  a  competent  witness,  thofegh  he  be 
the  person  who  is  liable  to  parlor  the  attendance  sworn  to. 
State  v.   Wyatt,  2  Bay,  56,  (219.) 

8.  When  a  witness  is  offered,  the  adverse  party  may  by  other 
witnesses  prove  him  interested,  and  he  shall  then  be  rejected  as 
incompetent.     Smalhcood  v.  Mitchell,  2  Hay,  145,  (3l8.) 

9.  Where  a  partnership  becomes  bankrupt,  and  a  suit  is  brought 
by  the  assignees  of  one  of  the  partners,  a  creditor  of  tVe  part- 
nership is  competent  to  prove  the  debt,  if  it  be  shown  that  the 
separate  estate  of  this  partner  is  not  sufficient  to  pay  his  sepa- 
rate debts.     Barclay  v.  Carson,  2  Hay,  -43,  (430.) 

10.  A  partner,  who  is  brankrupt,  may  prove  that  a  debt  sued 
for  by  the  assignees  of  his  co-partner,  also  a  bankrupt,  is  due  to 
his  co-partner.      Ibid* 

11.  On  the  trial  of  indictment  for  perjury,  a  person  int.  n 

to  prove  the  defendant  guilty,  because  he  will  thereby  exclude 
his  testimony  against  him  in  a  <  ivil  suit  then  pendii 
petent;  so  is  also  the  party  to  the  civil  suit  in&  t1  for  the 

defendant,  when  it   is   Ins   interest   to   support  the  defendant. 
States.  Hamilton,  2  Hay..  288,  (-170.) 

12.  A  bankrupt,  who  endorsed  a  note  before  his  1  ankruptcy, 
and  who  has  obtained  his  certificate,  is  a  good  witness  for  the 
endorsees  in  an  action  on  the  note  acainst  the  maker  Murray 
v.  Marsh  2  Hay,  290,  (472.) 

13.  If  the  objection  to  a  witness  arises  from  proof  made  by 
the  objector,  the  witness  cannot  discharge  himself  of  the  objec- 
tion by  any  matter  sworn  by  himself;  it  must  be  removed  by 
proof  drawn  from  some  other  source.     Ibid. 

14.  The  person  entitled  to  restitution  of  possession,  in  ease  ol 
a  conviction  for  a  forcible  entry,  has  such  an  interest  as  renders 
him  incompetent  to  support  the  indictment.  State  v.  Fellows,  2 
Hay,  340,  (520.) 

15.  If  a  witness  have  said  he  was,  by  promise  of  plaintiff,  t<  > 


EVIDENCE.— I.  421 

have  part  of  the  recovery,  a  release  •will  not  render  him  compe- 
tent. Qucere,  by  Haywood,  whether  the  promise  should  not  have 
been  proved   by  some  other  evidence.     Anonymous,  2  Hay.,  340 

(52°)  ...  . 

16.  A  captain  of  a  ship  is  not  a  competent  witness  for  the 

owner,  who  is  sued  for  the  lqss  of  a  cargo,  to  prove  that  the  loss 
•was  caused  by  stress  of  weather  and  not  by  negligence.  Gard- 
ner v.  id,  2  Hay,  3  19,  (534.) 

17.  A  witm  ss,  who  believes  himself  to  he  interested,  is  com- 
petent, if  his  interest  be  only  in  the  event  of  the  question  and 
not  of  the  cause.     Harrison  v.  Harrison,  2  Hay..  355,  (545.) 

18.  A  witness,  whot    by   his  testimony,   will  prevent  a  suit 
I   himself  is  incompetent.     Hunter  v.  McAudin*2  Hay., 

366,  (560.) 

19.  A  collector  of  arrearages,  whose  commissions  depend 
upon  the  amount  of  the  recovery  in  the  suit,  is  incompetent  to 

Erove  ii   fraud  against  a  defendant  charged  with  fraudulently 
uying  a  sheriff's  property.      Treasi  n  r  v.  Nail,  Tay.,  5,  (4.) 

20.  The  husband  of  the  widow  of  the  lessor  of  the  plaintiff's 
ancestor  may  be  a  witness  for  the  plaintiff  in  an  action  of  eject- 
ment.    Beatty  v. .  Tay.,  9,  (7.) 

21.  On  an  indictment  for  perjury,,  the  person,  against  whom 
the  defendant  testified,  and  upon  whose  testimony  he  was  con- 
victed of  a  misdemeanor,  is  a  competent  witness.  State  v.  Has- 
set,  Tay.,  55,  (40.) 

'2-1.  A  person  who  receives  money  from  A,  to  pay  to  B,  is  a 
son  ;'  tent  witness  to  prove  that  he  was  authorized  by  B,  to  re- 
ceive it  for  him  from   A,  in  a  suit   by  B   to  recover  it  from  A. 

.,1  Murph.,  17!'. 
.  23.  In  assumpsit  for  goods  sold  and  delivered  by  the  testator, 
aspeoii1-'  legatee,  not  entitled  to  any  share  of  the  residuum,  is 
a  competent  witness  to  prove  the  delivery  of  the  goods,  unless 
it  is  reasonably  probable  that  the  specific  legacy  may  !"■ 
wanting  to  pay  testator's  debts;  otherwise  the  interest  of  the 
witnes  is  too  remote  to  affect  his  competency.  Leary  v.  Littk- 
john.  1  Murph.,  406. 

24.  It  is  no  objection  to  the  competency  of  a  witness  that  he 
is  counsel  for  the  plaintiff,  and  intends,  if  the  debt  sued  for  be 
recovered,  to  charge  a  commission  for  receiving  and  remitting 
the  money.     Shcumbv.  Newlty,  1  Murph.,  423. 

25.  In  detinue  for  a  slave,  a  constable,  who  sold  the  slave 
under  an  execution  in  favor  of  B,  and  at  the  sale  acted  as  the 
agent  of  B,  in  bidding  off  the  slave,  and  by  B's  direction  exe- 
cuted a  bill  of  sale  to  the  defendant,  was  held  competent  to 
prove  these  tarts  on  behalf  of  the  defendant.  Beid  v.  Powell,  2 
Murph..  53. 

26.  In  Lord  Mansfield's  time  it  was  held  that  no  man  should 
be  heard  to  impeach  an  instrument,  to  which  he  was  a  party; 


422  EVIDENCE.— I. 

but  this  was  exploded  by  Lord  Kenyon,  and  it  was  held  that 
witnesses  could  be  excluded  only  for  infamy  or  interest,  which 
is  now  the  true  rule.      Guy  v.  Hall  3  Murph.,  150. 

27.  A  witness  is  not  incompetent  because  another  witness 
had  better  opportunities  for  knowing  the  facts  than  he,  as  the 
rule,  which  requires  a  party  to  produce  the  best  evidence  in  his 
power,  applies  to  the  grades,  excluding  parol,  where  written 
may  be  had,  but  it  does  not  apply  to  evidence  of  the  same 
grade,  so  as  to  exclude  weaker  where  stronger  might  have  been 
produced.     Governor  v.  Roberts,  2  Hawks,  26. 

28.  Where  it  appeared  that  a  son  was  subscribing  witness  to 
an  obligation  purporting  to  be  executed  by  his  father,  and  in  a 
suit  upon  it,  after  the  handwriting  of  the  son,  who  lived  out  of 
the  State,  had  been  proved,  if  was  held,  that  his  deposition  was 
competent  to  prove  that  it  had  never  been  delivered,  unless  the 
plaintiff  could  show  that  he  took  some  interest  under  a  will 
which  it  appeared  his  lather  had  left.  McKinna  v.  Hayer,  2 
Hawks,  4l'i\ 

29.  A  witness,  who  has  been  convicted  of  forgery  in  Tennessee, 
is  incompetent  in  the  courts  of  North  Carolina..  State  v.  Can- 
dler,  3  Hawks,  393. 

30.  A  wife  is  an  incompetent  witness  where  her  husband  is 
interested,  upon  principles  of  policy  arising  frem  the  relation  of 
husband  and  wife,  not  because  she  is  interested  in  the  suit,  nor 
on  account  of  her  legal  identity  with  her  husband.  Daniel  v. 
Procter,  1  Dev:  128. 

31.  An  interesl  in  the  event  of  a  suit,  acquired  after  its  com- 
mencement, does  not  render  a  witness  incompetent,  unless  that 
inti  n  sf  was  acquired  from  the  party  offering  him.  Bhem  v.  Jack- 
son, 2  Dev,,  187. 

32.  Where  two  persons  signed  a  receipt  for  money,  and  prom- 
ised  to  refund  it  if  not  entitled  to  it,  in  an  action  by  one  of  them, 
against  the  person  to  whom  the  receipt  was  given  for  money 
had  and  received,  the  other  is  a  competent  witness  for  I  he  plain- 
tiff, when  it  does  not  appear  that  there  is  any  identity  of  the  mo- 
ney sued  for  with  tharl  mentioned  in  the  receipt.  Smith  v.  Room, 
2  Dev.,  252. 

33.  The  surety  of  a  delinquent  cashier  is  not  a  competent  wit- 
ness for  him,  in  an  action  brought  to  recover  money  alleged  to  have 
been  improperly  paid  by  his  principal,  and  tor  which  the  latter 
is  chargeable.     Stale  Bank  v.  Littlejohn,  '1  Dev.,  381. 

34.  in  an  action  against  an  officer  for  wrongfully  seizing  the 
goods  of  A,  under  an  execution  against  B,  the  latter  is  not  a 
competent  witness  to  prove  title  in  himself.  Waller  v.  MiUs,  3 
Dev.,  515. 

35.  One  tenant  in  common  cannot,  in  an  action. .against  his  co- 
tenants,  be  examined  as  a  witness  to  defend  the  possession.  — 
Rogers  v.  Male,  4  Dev.,  180. 


EVIDENCE.— I.  423 

36.  The  rule  upon  the  subject  of  confidential  communications, 
from  a  husband  to  his  wife,  does  not  apply  to  such  as  are  made 
to  the  witness,  to  be  communicated  by  her  to  others;  nor  to  such 
as  are  made,  as  to  a  matter  of  fact,  to  be  operated  upon  after  his 
death,  where  it  must  be  the  wish  of  the  husband,  that  such  oper- 
ation should  be  according  to  the  truth  of  the  fact,  as  established 
by  his  declaration;  and  she  is  competent  to  prove  it.  Hester  v. 
Hester,  4  Dev.,  228. 

37.  Il  sums  that  an  inhabitant  of  a  town  may  be  a  witness  for 
the  town,  where  he  has  no  distinct  individual  interest  in  thesuit; 
and  whole  the  subject  matter  of  the  controversy  is  a  public 
charity  belonging  to  the  town,  he  is  undoubtedly  competent. — 
Jackson  v.  Commissioners  of  Hillsborough,  1  Dev.  and  Bat., 
177. 

38.  Th  •  fact  of  a  witness  being  interested  in  the  matter  in 
dispute  must  be  shown  only  in  the  mode  in  which  other  contro- 
verted facts  are  to  be  proved:  therefore,  the  declarations  of  the 
witness,  not  on  oath,  nor  in  the  presence  of  the  party  against 
whom  t!e-\  are  offered,  with  respect  tolas  interest  in  the  subject 
matter  of  the  suit,  cannot  be  received.  Ingram  v.  Watkvns,  1 
Dev.  and  Bat.,  442. 

39.  A  mere  trustee,  who  has  no  interest  in  the  event  of  a  suit. 
is  compel  ml  to  bestify  in  that  suit.  Jones  v.  Sasser,  1  Dev.  and 
Bat.,  452. 

40.  The  incidental  notice  taken  of  the  marriage  of  slaves,  to 
be  found  in  some  of  our  statutes,  does  not  legalize  their  marriage, 
so  far  as  to  affect  the  question' of  the  eompetency  of  the  hus- 
band and  wife  to  be  witnesses  for  or  against  each  other.  Statt 
v.  Samuel,  2  Dev.  and  Bat.,  177. 

41.  In  a  petitition  against  an  administrator,  upon  an  issue 
made  up  to  try  whether  the  petitioners  are  the  next  of  kin  of 
the  intestate,  the  sureties  to  the  administration  bond  are  compe- 
tent witnesses  for  the  defendant,  they  being  neither  parties  nor 
privies  to  the  r  icord,  and  therefore  it  could  never  be  given  in 
evidence  against  them.  Haywood  v.  Barnett,  3  Dev.  and  Bat, 
91. 

42.  In  an  action  on  a  joint  and  several  promissory  note,  if  the 
actioD  be  against  the  principal  alone,  the  surety  may  be.  a  wit- 
ness either  for  the  plaintiff  or  defendant.     Ibid. 

4;).  A  trustee, who  has  acted  by  selling  the  trust  property,  and 
lias  retained  his  commission  for  so  doing,  may  be  a  witness  in 
support  of  tii'.'  deed  in  trust,  if  lie  have  conveyed  the  property 
without  covenant  or  responsibility.  Norwood  v.  Morrow,  4  Dev. 
and  Bat.,  442. 

44.  A  husband  is  incompetent  to  testify  in  favor  of  his  wile: 
and  will  not,  therefore,  be  admitted  as  a  witness  to  establish  a 
settlement  in  her  favor  against  his  creditors;  nor  will  his  subse- 


424  EVIDENCE.— I. 

quent  declarations  be  admitted  for  that  purpose.     Saunders  v. 
Ferrell,  1  Ired.,  97. 

45.  Where  it  appeared  that  A,  B  and  C  entered  into  a  copart- 
nership in  the  name  of  A  &  Co.,  for  the  purchase  and  sale  of 
negroes,  and  it  was  afterwards  agreed  betweeen  them  that  A 
and  B  should  alone  be  interested  in  the  negroes  purchased  with 
cash,  but  all  three  should  be  equally  interested  in  the  negroes 
purchased  mi  a  credit,  it  was  held  that  though  C  might  be  held 
responsible  on  all  contracts  by  third  persons  dealing  with  the 
firm  of  A  &  Co.,  yet  he  would  be  competent  as  a.  witness  to 
testily  for  the  firm  in  an  action  on  the  warranty  of  soundness, 
contained  in  a  bill  of  sale  for  a  negro  purchased  in  the  name  of 
the  firm  for  cash.      Williamson*?.  Canada//,  1  [red.,  lb). 

46.  If  the  surety  to  a  note  or  bond  be  surd  alone,  the  princi- 
pal debtor  will  be  incompetent  as  a  witness  for  him,  because,  if 
the  plaintiff  succeed,  he  will  be  liable  to  the  surety  for  the  costs 
of  the  action;  but  the  principal  may,  in  such  action  against  the 
surety,  be  made  competent  by  a  release  from  the  surety,  before 
he  is  called  to  testify.     Moffit  v.  Gains,  1  Ired.,  158. 

47.  In  an  action  on  a  contract,  a  defendant  cannot  be  admitted 
as  a  witness  for  his  co-defendants,  even  after  he  has  suffered 
judgment  by  default  to  be  taken  against  himself.  Walton  v 
Tomlin,  1  Ired.,  593. 

48.  In  a  suit  by  an  administrator,  one  of  the  next  of  him  of 
his  intestate  cannot  lie  a  witness  for  him;  but  such  next  of  kin 
is  a.  competent  witness  fm-  the  defendant,  and,  if  introduced  by 
him,  may  lie  cross-examined  by  the  plaintiff  on  any  matter  perti- 
nent to  the  issue.     Cox  v.  Wilson,  2  Ired.,  234. 

49.  Where  a  bond  is  made  payable  to  one  "as  executor,"  for 
the  rent  of  land,  and  suit  is  broughton  it  in  his  name,  the  guar- 
dian of  wards,  who  are  in  equity  entitled  to  tin.'  rent,  is  a  com- 
petent witness  for  the  plaintiff.      Wooddell  v.  Jfoore,  2  Ired.,  261. 

50.  In  an  action  against  one  charging  him  to  lie  a  partner  in 
a  particular  firm,  it  is  competent  for  him  to  introduce,  as  a  wit- 
ness in  his  behalf,  a  person  who  was  an  acknowledged  member 
of  that  firm,  unless  it  be  admitted  by  the  pleadings,  or  sworn 
by  the  witness  on  his  voir  dire,  that  the  defendant  was  also  a 
member.     Iliimi  v.  MeKee,  4  Ired.,  475. 

51.  A  witness  cannot,  by  creating  by  his  own  act  a  subsequent 
interest,  without  the  concurrence  of  the  party  calling  him,  and 
much  less  by  an  agreement  with  the  opposite  party,  render  him- 
self incompetent,  so  as  to  deprive  the  party  calling  him  of  the 
benefit  of  his  evidence.     Hafner  v.  Irwin,  4  Ired.,  529. 

52.  A  vendor  of  personal  chattels  is  an  incompetent  witness, 
without  a  release,  to  prove  title  in  his  vendee,  because  in  every 
sale  of  a  chattel  personal  there  is  an  implied  warranty  of  title, 
if  there  be  no  contract  to  the  contrary.  Freeman  v.  Lewis,  5 
Ired.,  91- 


EVIDENCE.— I  425. 

53.  A  witness,  may  be  compelled  to  testify  in  a  civil  suitv 
though  his  evidence  may  militate  against  his  own  interest. 
Harper  v.  Burrow,  6  Ired.,  30. 

54.  A  witness,  who  is  so  much  intoxicated  asnot  to  be  able  to 
Understand  the  obligation  of  an  oath,  may  be  ordered  by  the 
court  to  stand  aside  until  he  becomes  sober,  and  if  the  party 
who  offered  him  omits  to  recall  him,  he  will  have  m>  ground 
upon  which  to  apply  for  a  new  trial.  State  v.  TJnd  .  ood,  6 
Ired..  96. 

55.  In  an  action  on  a  bond,  an  obligor,  who  is  not  a  party  to 
the  suit,  may  be  examined  as  a  witness  for  the  defendant,  hiB 
co-obligor;  and  more  especially  when  the  defendant  has  exe- 
cuted a  release  to  the  witness.     lAgon  v.  Dunn,  6  Ired.,  133. 

56.  Iii  an  action  against  two  of  three  partners  in  a  firm,  the 
plaintiff  may  introduce  the  third  partner,  who  is  not  a  party  to 
the  record,  though  he  could  not  be  compelled  to  give  his  testi- 
mony.    Cm    niru  v.  Coffin,  7  [red.,  196. 

57.  The  testimony  of  partner,  not  sued,  cannot  be  given  on 
behalf  of  his  co-partners,  because  in  a  suit  for  contribution  he 
would  be  bound  not  only  for  his  part  ol  the  d  bt,  but  also  for  his 
proportion   of  the  costs  accrued   in  the  action  in  which  he  is 

red.     Ibid. 

\  witness  is  not  rendered  incompetent  by  the  commission 
of.  or  the  conviction  by  the  jury  of  any  crime,  but  only  by  a 
judgment  upon  conviction.     Statev.  Valentine,  7  Ired..  225. 

59.  The  interest,  which  renders  a  witness  incompetent,  must 
be  a  legal  and  beneficial  interest  in  the  subject  matter  for  which 
the  suit  is  brought.     State  v.  Poteet,  7  Ired.,  356. 

60.  it  is  not  sufficient  thatawitness  believes  himself  inter- 
ested, if  in  fact  he  is  not:  nor  is  it  sufficient,  if  lie  conceive  him- 
self bound  m  morality  and  honor  to  make  good  any  loss  sus- 
tained by  the  person,  in  whose  favor  the  evidence  is  to  be  given, 
in  consequence  of  a  judgment  against  him.     Ibid. 

61.  The  leaning  of  the  courts  in  modern  times  is  to  let  the 
objection,  on  the  ground  of  interest,  go  to  the  credit  rather  than 
to  the  competency  of  the  witness.     Ibid. 

62.  The  testimony  of  a  partner,  nel  a  party  to  the  record,  may 
be  introduced  by  the  plaintiff  to  prove  that  the  defendant  was  a, 
member  of  the  firm,  and  that  go&ds  were  delivered  to  them  by 
the  plaintiff.      Washing  v.  Wright,  X  Ired.,  1. 

63.  Where  a  witness  is  equally  interested  on  both  sides,  he 
stands  indifferent,  and,  therefore,  where  the  plaintiff  alleged 
that  one  W  was  indebted  to  him,  and  the  defendant  agreed  to 
pay  the  del  >t.  it  was  held,  that  W  was  a  disinterested  witness, 
and  therefore  competent.     Qarraway  v.  Cox,  8  Ired.,  79. 

64.  A  sheriff  is  competent  as-  a  witness  to  prove  a  sale  made 
by  him  under  execution.     Owen  v.  Barksdale,  .sired.,  81. 

65.  An  agent,,  as  such,  is  not  necessarily  an  incompetent  wit- 


426  EVIDENCE.— I'. 

ness  to  testify  for  his  principal.  He  can  only  be  excluded  on 
the  ground  of  inteiest.     Ashe  v.  Murchison,  8  Ired.,  215i 

li(i.  When  a  principal  is  sued  for  the  negligence  of  his  agent, 
a  prima  facia  case  of  responsibility  to  his  principal  must  be 
shown,  befoi-e  the  -.agent  is  excluded  as  a  witness,  and  then  the 
principal  ought  to  be  permitted  to  examine  him  on  his  voir  dire, 
to  explain  his  real  situation.     Ibid. 

67.  It  has  been  the  universal  practice  in  this  State,  to  permit 
an  attorney  in  a  cause  to  give  evidence  at  the  instance  of  his 
client.      Stali:  v.   Jl'oodside.  '[)  Ired.,  4'.)6. 

68.  It  is  not  competent  to  introduce,  as  a 'witness,  a  member  of 
a  firm,  to  prove  that  his  individual  board,  or  any  other  individual 
debt,  was  to  be  paid  by  the  firm.  Street  v.  Meadows,  11  Ired., 
130. 

()!'.  After  the  death  of  a  husband,  his  wife  is  a  competent 
witness,  to  prove  the  execution  of  a  deed  mad''  by  him  in  favor 
pf  a  third  person.     Gush-ill  v.  King,  12  Ired.,  211. 

70.  On  the  trial  of  a  collateral  issue  between  the  administra- 
tor and  heirs,  as  to  assets,   in  a  suit  by  a  creditor,  one  of  the 

heirs  is  an  inc pet<  nt  witness  for  the  administrator,  though  he 

may  have  re]  lased  to  him  all  his  interest  in  the  personal  estate, 
and  also  an  amount  supposed  to  be  the  value  of  the  real  assets 
descended  to  him.     Carrier  v.  Hamilton,  13  [red.,  436. 

71.  A  wife  is  not  a  competent  witness  against  her  husband,  to 
prove  a  battery  on  her  person  by  him,  except  in  a  case  where  a 
lasting  injury  is  inflicted,  or  threatened  to  be  inflicted  upon  her. 
Sliili  v.  Hussey,  Bush,  123.  (A  wife  is  competent  to  give  evi- 
dei in  such  a  ease  now.     See  acts  of  1856,  ch.  23.) 

72.  A  deputy  sheriff,  to  whom  it  is  alleged  that  payment  of  a 
judgment  was  made,  is  a  competent  witness  to  disprove  the  al- 
legation.    State  v.  Simpson,  1  Jones  80. 

73.  The  intendant  of  police  in  an  incorporated  town,  who  is- 
sues a  warrant  against  a  slave  for  a  penalty  for  violating  a  town 
ordinance,  which  warrant  is  in  the  name  of  the  commii  i  ionersof 
the  town,  as  plaintiffs,  of  whom  he  also  is  one,  is  a  competent  wit- 
ness to  prove  the  disorderly  conduct  of  such  slave,  alleged  as  a 
breach  of  the  ordinance.   Commissioners  of  Washingtion  v.  Frank. 

1  Jones,  436. 

74.  Where  an  administrator,  in  order  to  gel  possession  of  the 
assets,  enters  into  a  covenant  with  one  found  in  possession  of  a 
slave,  that  the  slave  is  his  as  administrator,  the  next  of  kin  of 
tin'  intestate  are  competent  to  testify  for  the  administrator  in  a 
suit  on  his  covenant,  because  they  are  not  liable  even  for  the 
costs  on  a  breach  of  his  personal  covenant.      Conies  v.  Rowland, 

2  Jones,  2 lit. 

75.  The  master  of  a  slave,  who  is  on  trial  for  capital  felony,  is 
a  competent  witness  in  behalf  of  his  slave.  State  v.  Jim,  3 
Jones,  318. 


EVIDENCE.— I.  427 

76.  A  stockholder  in  a  bank  is  not  a  competent  witness  to  es- 
tablish a  debt  due  to  the  bank.  But  in  the  case  of  a  public  cor- 
poration, as  for  instance  a  county  or  town;  a  member  of  it  may 
be  a  witness  for  it.     Stephenson  v.  Simmons,  4  Jones,  12. 

77.  A  person  who  believes  in  the  existence  of  a  Supreme  Being. 
-and  that  he  will  punish  in  this  world,  and  punish  in  this  world 
■only,  fir  every  sin  committed,  is  a  competent  witness.  Shaw  v. 
Moore,  4  dunes.  25. 

7*.  A  person,  who  has  a  direct,  certain,  legal  interest  in  the 
event  of  a  suit,  is  nut  a  '<•  iinpctent  witness  on  the  side  of  his 
own  interest.     Mian  v.  Stafford,  4  Jones,  94. 

79.  The  interest,  which  will  disqualify  a  witness,  is  any  inter- 
est that  can  be  asserted  in  a  court  sf  justice,  whether  a  common 
law  court,  or  a  court  of  equity.     Ibid. 

S).  In  a  suit  to  recover  back  the  purchase  money  paid  to  the 
holder,  without  endorsement  of  a  not''  alleged  to  he  forged,  the 
ostensible  maker  of  the  note  is  a  competent  witness  to  prove 
the  forgery,  although  he  had  given  to  the  ostensible  payee  a 
bond  to  indemnify  aim  against  the  consequences  of  refusing  to 
let  his  n.i  ae  b  ■  usi  d  in  the  collection  of  it  by  suit.  White  v. 
On   a.  5  Jones,  47. 

81.  In  an  action  of  trover  for  the  conversion  of  a  personal  chat- 
tel, if  the  defendant  does  notrelyupon  a  title  in  himself  adverse 
to  that  of  the  plaintiff's  vendor,  such  vendor  is  a  competent 
witness  for  the  plaintiff  to  prove  the  sale  made  to  him.  Wei- 
mor    v.  C  '■'..'■'  Jones,  155. 

82.  In  an  action  against  the  owner  of  a  vessel  for  failing  to. 
deliver  goods  according  to  his  written  contract,  in  which  was 
an  exception  of  the  dangers  of  the  sea,  it  was  held,  that  the  □ 

in  charge  of  the  vessel  was  competent  to  prove  that  the  goods 
were  lust  in  conseqence  of  a  storm  at  sea.  Willard  v.  Cart*  ■.  a 
Jones.  395. 

83.  In  an  action  of  assumpsit  to  recover  money,  which  the  di  - 
Fendant  had  obtained  from  the  plaintiff's  agent  by  gaming  and 
other  unlawful  means  such  agent  is  not  a  competent  witness 
for  theplaintiff  without  a  release.    Jones  v.  McRay,  6  Jones.  192. 

84.  A  co-obligor  as  surety  to  a  bond,  who  is  not  sued,  is  a 
competent  witness  to  prove  the  execution  of  the  bond  by  tin- 
principal,  because  he  is  equally  interested  on  both  sides.  Gil- 
liam v.  B  ineberry,  6  Jones.  223. 

85.  A  landlord,  who  had  leased  his  hind  to  a  tenant  for  a  year, 
for  a  part  of  the  crop,  was  held  to  be  a  competent  witness  to 
prove  a  trespass  upon  the  land,  and  damages  by  the  destruction 
of  the  crop.     Smiili irlin  v.  Shaw,  6  Jones,  225. 

86.  Where  a  note  was  payable  to  a  person  as  agent,  and  he 
put  it  into  the  hands  of  a  constable,  who  gave  a  receipt  to  col- 
lect it  for  the  principal,  it  was  lidd  that,  in  a  suit  on  the  consta- 
ble's bond  for  a  failure  to  collect,  the  principal   was  the  proper 


428  EVIDENCE.— I 

relator  and  the  agent  was  a  competent  witness  for  him.     Nixon 
v.  Bagby,  7  Jones,  4. 

87.  A  surety  to  a  prosecution  bond  is  not  discharged  by  a 
second  bond,  given  upon  a  rule  obtained  at  the  instance  of  the 
defendant;  and  therefore,  the  surety  to  the  first  bond  is  not 
competent  as  a  witness  for  the  plaintiff.  Utile  v.  JVood  rL  7 
Jones,  441. 

88.  Where  a  person  became  interested  in  a  eonvenant  of  war- 
ranty of  a  slave,  by  purchasing  an  interest  in  him,  and  had 
such  interest  at  the  time  the  suit  was  brought,  but  sold  it  to  the 
plaintiff  previous  to  his  examination,  it  was  held,  that  he  was  a 
competent  witness  for  the  plaintiff.  Henderson  v.  Grouse,  7 
Jones,  623. 

89.  Where  land  has  been  sold  under  execution  as  the  property 
of  A,  and  he  has  received  a  portion  of  the  sum  raised,  which 
was  a  surplus  above  the  amount  of  bhe  execution,  he  cannot  lie 
a  witness  for  the  purchaser  in  an  action  by  him  to  recover  the 
land;  because  he  is  liable  to  such  purchaser  under  the  Rev. 
Code,  oh.  43,  sec.  27.  in  the  event  of  his  losing  the  land.  Brown 
v.  Smith,  8  Jones,  331. 

90.  An  occupant  of  land  is  incompetent  to  give  evidence  for 
the  defendant  in  an  action  of  ejectment.  Foust  v.  Trice,  8 
Jones.  490. 

91.  A  person,  whose-  land  has  been  sold  at  sheriff's  sale,  is  a 
competent  witness  in  an  action  of  ejectment,  to  show  that  his 
title  was  defective.     McBougald  v.  McLean,  1  Winst.,  120. 

92.  In  an  action  ova  passenger  on  a  railroad,  against  the 
c pany,  to  recover  damages  for  the  loss  of  his  trunk,  the  plain- 
tiff is  not  n  competent  witness  to  prove  the  loss  of  the  trunk  ox 
its  contents,  though  he  offer  to  swear  that  he  has  no  means 
of  proving  those  facts,  or  either  of  them,  except  by  his  own 
oath.  Smith  v.  North  Carolina  Bailroad  Company,  1  Winst., 
203: 

93.  Where  a  witness,  who  had  an  interest  in  a  cause,  gives  or 
accepts  a  release'  in  order  to  extinguish  his  interest,  which  is  ex- 
pressed to  be  given  in  consideration  of  the  payment  of  a  sum  of 
money  named  therein,  it  is  competent  for  the  other  party  to  ask 
him  whether  in  fact  any  money  was  paid.  Johnson  v.  Alarvlason, 
1  Winst.,  292. 

See  (Act  of  Assembly,  4.)  (Bills  of  Exchange  and  Promissory 
Notes — Remedy  on  ,-t  hill  or  note,  declaration,  pleading  and  evi- 
dence, 12-13.)  (Bonds — Proceedings  in  suits  upon  bonds,  (!.) 
(Evidence — Subscribing  witness — Proof  of  hand-writing,  18- 
28-39-4-5—46.)  (Evidence — Proceedings  in  other  suits,  when 
and  how  far  evidence,  10.)  (Evidence — In  criminal  proceedings- 
and  indictmen-ts  38-39-45^48-49-50-54.)  (Landlord  and  ten- 
ant, 27.) 


EVIDENCE.— It  429 

II.       SUBSCRIBING   WITNESS — PROOF   OF   HAND-WRITING. 

When  the  subscribing  "witness  to  a  bond  resides  in  another 
State,  Ins  handwriting  may  be  proved.  Tullock  v.  2\i.  lids,  Mar. 
27,  (15.)     S.  1'.,  Irving  v.  Irving,  2  Hay.,  27,  (183.) 

2.  If  the  subscribing  witness  to  a  covenant  become  adminis- 
trator <>f  tin'  covenantee,  in  a  suit  by  him  his  handwriting  may 
he  proved,  as  well  as  that  of  the  defendant.  Ellis  v.  Hetfield, 
Mar.  41.  (32.) 

o.  The  temporary  absence  of  a  subscribing  witness,  to  a  note 
or  bolra,  from  the  State,  will  not  authorize  proof  of  his  hand- 
writing. Harvey  v.  Jones,  Mar.  41,  (33.)  S.  1'.,  Gordon  v. 
Pay,  e,  Mar.  72,  (74,)  £,  by  v.  Clark,  4  Hawks.  265. 

4.  The  wife  of  the  obligor  cannot  be  a  subscribing  witness, 
and  her  handwriting  cannot  be  proved.  Nelius  v.  BrickeU,  1 
Hay-  19,  (25.) 

5.  The  mark  of  a  subscribing  witness,  who  is  dead,  or  not  to 
be  found,  may  he  proved  to  let  in  proof  of  the  handwriting  of 
the  obligor.     Ibid. 

6.  When  a  subscribing  witness  cannot  be  found,  his  hand- 
writing may  be  proved,  aid  the  instrument  given  in  evidence. 
Jones  v.  Brinkley,  1  Hay.,  20,  (28.) 

7.  The  handwriting  of  a  subscribing  witness,  who,  after  sub- 
scribing, voluntarily  becomes  interested  in  the  bond,  cannot  be 
proved.  Han  ilion  v.  Williams,  1  Hay.,  139,  (HiO.)  S.  C,  -  Hay., 
101.  (261.) 

y.  When  a  sealed  instrument  is  unattested  by  a  subscribing 
,  proof  of  the  obligor's  handwriting  maybe  given  in 
evidence.     Ingram  v.  Hall,  Mar.  1.     S.  C,  1  Hay.,  193,  (222.) 

'.i.  When  the  subscribing  witness  to  a  bond  is  dead,  and  his 
handwriting  canm  d,  proof  of  the  handwriting  of  the 

obligor  may  be  receivi  1.     Jones  v.  Blount,  1  Hay.,  i  272.) 

10.  WLere  the  execution  of  a  b    i  a  man   of  the  same 
with  the  obligor,  was  proved  by  tb     '   pi    itioi    ofthesub- 

scribing  witness,  the  handwriting  of  the  obligor  was  allowed  to 
b  '..m.      Mushrow  v.   Graham,  1  liar.,  361, 

(4140  .,-  - 

11.  It  the   subscribing   witness  to  a.  bond    become  assignee 

■'.  and.  then  assign  to  the  plaintiff,  proof  cannot  lie  reci  n  i  d 
either  of  his  handwiting  or  of  that  of  the  obligor.  Hall  v.  By- 
num,  2  Hay.  328,  (499.) 

12.  Although  the  subscribing  witness  to  a  bond  does  not  De- 

nature to  lie  tiie  handwriting  of  the  obligor,  but  that 
his  own  signature  is  his  own  handwriting,  and  that  he'  never  at- 
tested but  one  paper  signed  by  the  obligor,  that  may  be  smlli- 
cient  proof  of  the  execution.     Churchill  v.  Spaight,  2  Hay.,  338. 

(515-)  ...  .,  . 

13.  If  the  subscribing  witness  to  a  bill  of  sale,  which  is  lost,  be 


430  EVIDENCE.— II. 

dead,  others  may  prove  its  contents.      Garland  v.    Goodloe,  2 
Hay*.,  351,  (537.) 

14.  The  signature  of  the  president  and  cashier  of  a  bank  may 
be  proved  by  persons  who  never  saw  them  write,  but  whose  bu- 
siness has  made  them  conversant  with  bank  bills,  and  the  judg- 
ment of  persons  well  acquainted  with  bank  notes  is  sufficient 
evidence  to  determine  whether  a  note  be  genuine  or  forged. — 
United  Slates  v.  Holtsdaw,  2  Hay.,  379,  (577.)  S.  P.,  State  v. 
AUen,  1  Hawks  6.     State  v.  Candler,  3  Hawks,  393. 

15.  The  handwriting  of  a  subscribing  witness  may  1m-  proved, 
when  he  refuses  to  attend  under  circumstances  of  fraud,  and  the 
party  has  done  all  he  can  to  procure  his  attendance.  Baker  v. 
Blount,  2  Hay,  404,  (610.) 

16.  Where  the  name  of  the  subscribing  witness  to  a  bond  was 
written  by  the  obligor,  it  is  the  same  as  if  there  were  no  sub- 
scribing witness,  and  proof  of  the  obligor's  hand  writing  is  suf- 
ficient.    Allen  v.  Martin,  1  Gar.  L.  R.,  373,  (42.) 

17.  The  production  of  the  subscribing  witness  to  a  written 
contract  can  only  be  dispensed  with  in  cases  of  necessity,  as 
when  he  is  dead,  removed  beyond  the  process  of  the  court, 
become  infamous,  or  interested  by  operation  of  law.  Therefore* 
where  the  assignee  of  a  bond,  to  which  he  was  the  subscribing 
witness,  brought  a  suit  on  it;  it  was  held  thatfno  evidence  could 
be  given  of  its  execution  by  the  defendant;  not  even  a  declare*- 
tionbythe  defendant  that  he  had  given  the  bond  and  would 
pay  it.  Johnson  v.  Knight,  1  Murph.,  293,  S.  C,  1  Car.  L.  R.,  93, 
(12)  and  2,  Murph.,  237. 

18.  A  subscribing  witness  to  a  note,  to  whom  it  is  afterwards 
endorsed,  and   who  then  endorses  it  without  recourse,  and  is  also 

released  by  the  .endorsee,  is  a  i ipetent  witness  to  prove  its 

execution.'    Biflingsly  v.  Knight,  N.  C.  Term,  R,  103,  (540.) 

19.  The  modes  of  proving  the  handwriting  of  a  person  an  . 
1st,  by  a  witness  who  saw  him  sign  the  very  paper  in  dis- 
pute; 2nd,  by  one  who  has  seen  him  write,  and  thereby  fixed 
a  standard  in  his  own  mind,  by  which  he  ascertained  the  gen* 
uineness  of  any  other  writing  imputed  to  him;  3rd,  by  a  wit- 
ness who  has  reci  ived  letters  from  the  supposed  writer,  of  such 
a  nature  as  renders  it  probable  that  they  were  written  by  the 
person  from  whom  they  purport  to  come;  4th,  by  those  who 
have  inspected  and  become  acquainted  with  ancient  authentic 
documents,  which  bear  the  signature  of  the  person.  State  v. 
Allen,  1  Hawks.  6. 

20.  If  win  est  factum  be  pleaded  to  an  action  on  a  bond,  the 
subscribing  witness  must  be  produced,  but  the  plaintiff  is  not 
confined  to  his  testimony,  but  may  also  give  evidence  of  the 
handwriting  of  the  obligor,  or  his  acknowledgment  of  the  bonds 
or  the  like.     HoUoway  v.  Lowrenw,  1  Hawks,  49. 

21.  The  handwriting  of  a  magistrate,  to  his  official  acts,  need 


EVIDENCE.— II.  431 

not  be  proved  by  himself,  though  within  the'  process  of  the 
court;  but  may  be  proved  by  any  person  acquainted  with  it. 
Ainsworth  v.  Greenlee,  1  Hawks,  19Q. 

22.  Pn>i  if  of  the  hand  writing  of  a  subscribing  witness,  who  is 
only  temporarily  absent  from  the  State,  is  inadmissible,  but  it  is 
otherwise,  ifhieabsence  be  caused  by  the  performance  of  a  pub- 
lic duty,  as  attending  congress  as  a  member  thereof.  Selbi/  v. 
Clark,  4  Hawks,  265. 

23.  A  witness,  who  has  seen  many  certificates  of  survey  at- 
tached to  grants,  and  purporting  to'have  been  made  by  a  survey- 
or since  deceased,  is  competent  from  the  knowledge  of  his  hand- 
writing thus  acquired,  to  prove  that  a  particular  plat  of  survey- 
is  in  the  handwriting  of  the  deceased  surveyor.  Jones  v.  Hiaj- 
gins,  1  Dev.,  223. 

24.  When  a  lull  of  sale  is  introduced  as  a  forgery,  for  the  pur- 
pose of  supporting  the  credit  of  a.  witness,  the  subscribing  wit- 

ieed  not  lie  produced  on  the  trial.     State  v.    Weir,  1  Dev., 
363. 

25.  The'  act  of  1806  requiring  the  due  and  fair  execution  of 
deed  of  ft,  c,  of  slaves  to  be  proved  on  the  trial,  does  not 
introduce  a  new  rule  of  proof,  but  onlyrepels  the  idea  that  they 
may  be  read  und  r  i  vrte  probate  for  registration.  It  is, 
therefore  not  i  ntial  to  the  validity  of  a  deed  «i  gift  for  slaves, 
under  tl  ■  L806,  that  the  subscribing  witness  should  be 
able  to  testify  try,  as  well  as  to  the  sijniiiu  a:,  1 1  st  ulinij. 
That  fad  :■<  ly  b  proved  by  other  witnesses  Ar<  Ireivs  v.  Shaw, 
-1  Dev.,  70,  S.  P.,  Vines  v.  Broumrigg,  4  Dev.,  265. 

26.  To  prove  the  execution  of  a  bond,  the  testimony  of  an 
attestin  .  or,  if  there  be  none,  of  the  handwriting  of  the 
obligor,  is  the  ordinary  mode;  but  this  is  not  exclusive  of  other 
modes:  as  when  one,  whose  name  purported  to  lie  signed  to  a 
bond,  procures  the  custody  of  it  and  erases  his  name,  tl  exe- 
cution of  it  may  be  inferred  from  this  spoliation.     Cornishv. 

•  Bat.,  62. 

'11.  It'  a  p  irson,  who  subscribed  a  bond  as  a  witness,  without 
the  knowledge  or  consent  of  the  obligor,  die,  proof  of  his  hand- 
writing would  not  be  sufficient  evidence  of  the  due  i  xecution 
of  the  bond:  other  evidence  would  be  required,  as  proof  of  the 
handwriting  of  the  obligor,  his  acknowledgments,  or  the  like. 
BlackweU  v.  Lane,  4  Dev;  and  Bat.,  113. 

28.  [f  the  subscribing  witness  to  an  instrument  becomes  in- 
terested and  a  party  to  tile  cause,  even  though  he  does  so  vol- 
untarily, he  cannot  be  examined  as  a  witness.  In  such  case,  the 
adverse  party,  if  he  wish  to  prove  the  instrument,  may  prove  the 
handwriting  of  the  subscribing  witness;  and  if  that  cannot  be 
done,  proof  of  the  handwriting  of  the  party,  who  executed  the 
instrument,  is  admissible.  If  proof  of  neither  can  be  obtained 
by  disinterested  witnesses,  the  party  must  resort  to  his  bill  of 


432  EVIDENCE.— II. 

discovery  in  equity.     Blachwelder  v.  Fislter,  4  Dev.  and  Bat., 
204. 

29.  A  witness  may  state  his  belief  as  to  the  identity  of  per- 
sons, or  the  sameness  of  handwriting-,  though  he  will  not  swear 
positively  as  to  those  facts;  and  the  degree  of  credit  to  be  at- 
tached to  his  evidence  is  a  question  for  the  jury.     Beverly  v. 

Williams,  4  Dev.  and  Bat.,  236. 

30.  Testimony  as  to  handwriting,  founded  on  what  is  properly 
termed  a  comparison  of  hands,  seems  now  to  be  generally  ex- 
ploded. And  the  only  admissible  testimony  of  handwriting  is 
that  of  a  witness,  who  has  acquired  a  knowledge  of  the  party's 
handwriting,  from  having  seen  him  write,  or  from  having  had  a 
correspondence  with  him  upon  matters  of  business,  or  from 
transactions  between  the  witness  and  party,  such  as  the  former 
having  paid  bills  for  the  latter,  for  which  he  has  afterwards  ac- 
counted.    Popev.  Askew,  i  [red.,  16. 

31.  Where  the  attesting  witness  to  a  bond  is  dead,  its  execu- 
tion may  be  proved  by  the  proof  of  the  witness's  handwriting; 
but  if  such  evidence  cannot  be  had.  then  proof  of  the  obligor's 
handwriting  is  admissible;  but  before  the  latter  testimony  will 
be  received,  the  party  offering  the  bond  for  probate  must  show 
to  the  court  that  he  has  done  all  in  his  power,  without  effect,  to 
procure  evidence  of  the  handwriting  of  the  ati  witness. 
Hence,  where  it  appeared  that  the  subscribing  witness  to  a  bond 
had  been  clerk  of  the  county  court  of  a  large,  populous  and 
wealthy  county,  and  had  been  dead  only  twenty-five  years,  it 
was  in  Id  not  to  he  sufficient,  for  admitting  testimony  of  the 
obligor's  handwriting,  to  shew,  by  one  witness  only,  that  he  did 
not  know  the  subscribing  witness's  handwriting,  and  did  not 
know  of  any  person  v.le  did  have  such  knowl 

v.  LUtlejohn,  1  Ired..  Mi. 

32.  Where  the  subscribing  witness  to  any  in  at,  excepl 
a  negotiable  one,  becomes  interested  in  a  suit  !  roughl  by  him, 
his  handwriting  may  he  proved  to  establish  the  e  lotion  of 
the  instrument,  whether  his  interest  was  thrown  upon  him  by 
operation  of  law,  or  was  acquired  by  his  own  voluntary  act. 
Saunders  v.  Ferrill,  I  [red.,  '..!7. 

33.  The  subscribing  witness  to  a  deed  in  trust  need  not  be 
called  to  prove,  it  on  the  trial  i  F  o  nt.  the  reg- 
istration  being  prima  facie  evidence  of  its  execution.  Harper 
v,  E  rrow,  6  [red.,  80. 

.'If.  Proof  of  the  handwriting  of  a  subscribing  witness  to  a 
de  d,  who  resides  out  of  the  State,  is  sufficient  proof  of  the  exe- 
cution of  the  deed.     Edwards  v.  Sullivan,  8  ired..  302. 

35.  Proof  of  the  handwriting  of  a  if  ceased  subscribing  wit- 
ness to  a  bond  is  not,  strictly,  prima  furl-  evidence  of  the  exe- 
cution of  the  bond,  though  it  will  authorize  (lie  reading  of  the 
instrument  to  the  jury;  but  the  jury  must  weigh  this,  together 


EVIDENCE.— II.  433 

with  the  other  circumstances  given  in  evidence,  and  from  the 
whole,  determine  whether  the  alleged  instrument  was  executed 
or  not.     Black  v.   Wright,  0  Ired.,  447. 

36.  In  an  action  upon  a  bill  of  exchange,  the  testimony  of  a 
witness,  who  cannot  swear  to  the  handwriting  of  either  member 
of  tlie  firm,  in  whose  name  the  bill  was  drawn,  but  who  testifies 
that.,  in  his  opinion,  the  handwriting  was  the  same  as  that  of 
many  notes  he  had  presented  to  the  firm  and  which  had  been 
paid  by  them,  was  competent,  and  it  was  proper  to  leave  Mich 
evidence  to  the  jury.     Gordon  v.  Price,  10  Ired.,  385. 

:')7.  Where  the  subscribing  witness toa  deed  for  land  or  slaves 
and  tl;  dead,  or  cannot  be  procured,  whereby  it  can- 

not be  ged  by  the  one  or  proved  by  the  other,  recourse 

ie  common  law  mode  of  the  purpose 

of  registration,  as  also  for  the  purpose  of  making  the  deed  evi- 
dence at  common  law  generally.  And  in  such  case,  the  party 
would  be  under  the  necessity  of  giving  similar  evidence  of  the 
execution  on  the  trial.     Carriers.  Hampton,ll  Ired.,  307. 

38.  A  mere  mark  or  cross  ol  an  illiterate  subscribing  witness, 
prima  facie,  cannot  be  identified,  and  therefore  tin-  instrument 
may  I'  ■  read  upon  proof  <>i  the  handwriting  of  the  party.     Ibid. 

39.  Where  a  witness  to  a  contract,  subsequently  to  ins  attes- 
ation,  acquires  an  interest  in  the  contract,  through  or  under  one 
if  the  contracting  parties,  he  is  an  incompetent  witness  for  the 
party  so  creating  the  interest,  unless  the  circumstances  entirely 
negative  any  idea  of  fraud,  as  where  the  interest  was  thrown 
upon  him  by  the  act  of  law,  or  when  .  afti  r  attestation  of  an  in- 
strument, the  witness  has  married  the  party  seeking  to  establish 
the  in  trument.     Overman  v.  Coble,  13  Ired.,  1. 

40.  Proof  of  a,  deed  bj  .  .  ttesting  witnesses  is  sufficient; 
and.  proof  of  t»B  handwriting  of  one,  where  both  are  dead,  is 
also  sufficient.     Burnettv.  Tim  ,     n,  13  Ired.,  379. 

41.  A  witness,  who  has  had  a  bu  spondenee  with  a 
i  unknown  to  him.  who  has  v  him  .-Mid  has 

received  answers  from  him.  and  swears  thai  in  tin's  way  he  has 

acquin  da  know  ledge  of  his  signature  though  not  of  hie  renerul 

handwriting,    is   competent    to    testify   as   to    such    signature. 

I  Jones,  94. 

■12.  ]  i     i  pidi  i  ce,  1 1  al  thecom]  ari        ofi  I  her  writings 

with  the  on.'  rn  contest  c  d  to  pro-*  -  handwriting, 

is  not  varied  by  the  fact  that  such  writi  evidence  for 

ir]    -         Writi i  gf  ar<    no1  propel  d  to  a  jury's 

1  be  read.  sral  rule,  all  evi- 

'    aring  of  th<e  jury,  and  not  to  their 

sight.     Outlaw  v.  Hurdle,  I  Jones,  150. 

4o.  A  witness,  who  swears  thai  he  is  well  acquainted  with  the 
itii  g  of  a  person,  no  question  being  asked  him  by  the 
opposing  party  as  to  how  he  became  acquainted  with  suchhand- 
28 


434  EVIDENCE.— II.-III. 

writing,  is  qualified  prima  few ie  to  testify  as  to  it.     Harwich  v. 
Wood,  3  Jones,  303. 

44.  Writings  cannot,  as  a  general  rule,  be  submitted  to  the 
inspection  of  a  jury,  to  enable  them  by  comparison  to  form  a?i 
opinion  as  to  the  genuiness  of  another  paper.  Otey  v.  Hoyt,  3 
Jones,  407. 

45.  Where  the  subscribing  witness  to  a  bond,  having  pur- 
chased the  interest  therein  without  endorsement  to  him,  sold  the 
same,  also  without  endorsement,  on  a  credit,  with  the  avowed 
purpose  of  making  himself  competent  to  testify,  and  i  tated,  that 
it  was  at  the  time  of  the  trade,  and  still  was,  his  pur]  ose  not  to 
make  his  vendee  pay  for  the  bond,  unless  he  could  recover  it, 
but  said  that  there  was  not  any  understanding  to  that  effect 
between  them  in  the  tiade,  it  was  held  that  he  was  a  competent 
witness.     Purvisv.  Albritton,  5  Jones,  170. 

46.  A  subscribing  witness  is  competent,  who,  at  the  execution 
of  the  instrument,  had  mind  enough  to  in  tin  obliga? 
tion  of  an  oath,  and  to  prove  the  capacity  of  the  grantor  ami 
his  execution  of  the  deed.     Hughes  v.  /'.  bn  im,  8  Jon  s,  127, 

See  (Evidence  [n  criminal  proceedings  and  indictments,  57.) 
(Executors  and  Administrators — Of  their  liability  to  credi- 
tors, 27.) 

III.        WITNESSES THEIR    EXAMINATION. 


1.  A  witni  ci  be  examined  on  hi  %  after  other 
witnesses  have  been  examined  to  prove  his  i  rest.  Roy  v. 
Mariner,  2  Hay..  385,  (585.) 

2.  Where  a  witness  is  called  by  one  parti  i ■■!  e  aminedasto 
a  particular  fact,  and  is  afterwards  cross-i  :  ed  by  the  other 
party  as  to  other  Fa  .  the  party  first  calling  him  cannot  objeci 
to  his  testimony  i  n  the  -round  of  inten  .-  v.  Hamilton, 
Tay.,  10  (7.) 

3.  Thi  i  itheron  the  pari  of  theState 
or  of  the  defendant'  I  not  in  this  State  a  matter  of  right,  though 
it  is  the  usual  practice  when  n  quested.  Bui  <  ai'tei  such  an 
order  has  been  made,  it  is  no -cause  for  a  i  wtrial,1  tawitnesa 
who  has  aol  gone  out,  but  lias  remained  and  heard  the  othei 
■.  ■  i is,  i  i  Ftei  w:  Is  permitted  by  the  judj  e  to  be  examined 
!  j       ■  State.     State  v.  Spa    ow,  3Mi    ph., 

4.  A  witness  on  a  trial  cannot  be  a  ked,  if  he  has  not  in  con- 
versation stated  1  than  he  now 
deposi 

5.  A  wira        •        nterested  in  tl nit,  n  ay  be 

ions  on  whi  hts  in  litiga- 

tion depend,  excepl    wherl  his  answer  would   subject  him  to  a 
criminal  prosecution,  or  make  him  liable  to  a  penalty  or  forfeiture. 


EVIDENCE— III.  435 

or  render  him  infamous;  hence  he  is  bound  to  answer  a  question 
though  it  may  subject  him  to  a  civil  action.  Jones  v.  Lanier.  2 
Dev.,  480 

6.  On  the  trial  of  an  indictment  for  murder,  the  court  at  the 
request  of  the  jury  may,  in  its  discretion,  permit  a  witness,  who 

unined,  to  be  called  again  at  any  time  before 
the  verdiel  is  r  md  ■•  d,  notwithstanding  the  witnesses  weresep- 
arated  b  ifore  tb  >ir  first  examination,  and  had  since  an  opportu- 
nity of  communicating  with  each  other.  Stale  v.  Silver,  3- 
Dev.,  332. 

7.  A  party  is  not  bound  to  offer  an  incompetent  witness,  in 
order  that  Ins  a  Iversary  may  waive  the  objection  and  cross- 
examine  him.     Crowett  v.  Kirk.  3  Dev.,  355. 

8.  1 1  is  not  allowable  to  counsel,  on  a  cro  ---examination,  to  put 
a  question  to  a  wi  i  m    srning  any  collateral  fact,  notreb  >ant 

if  disproving  the  truth  of  the  expested 
answer  by  o  i:  to  such  a  question  must 

I  usive,  and  no  evidence  can  be  afterwards  admit- 
ted to  i  it;  but  this  rule  di  .      .1\-  to  any  enquiry 
reepectin  ;  the  fact   in  issue,  or  its  attendant  circumstances,  or 
any  fact  immedial                 icted  with  the  subject  of  the  enquiry. 
t.  an  1  Bat,  39. 

9.  Where  a  witness  on  the  part  of  the  State,  on  Ins  cross- 
examin  tion  d  "whether  the  prosecutor  had  not  paid  him 
tor  coming  from  ano  her  State  to  be  a  witness,  and  answered 
that  he  had  not,  it  is  incompetent  for  the  defendant  to  introduce 
witnesses  to  prove  his  declartions  that  he  had  been  so  paid.  State 
v.  Patters  m,  '1  [red.,  346. 

10.  \\"!i  ir  to  which  a  witness  deposes,  constitutes  a 
part  of  the  trail  m  under  investigation,  then  evidence  of  in- 
consisl  i  :nts  by  bim,  in  relation  to  this  fact,  may  be  in- 
troduce iach  his  credit,  But  in  respect  to  collateral 
matters,  d  awn  out  by  cress  examination,  the  answers  of  the 
witn        are  in  j      le     I  to  be  regarded  as  conclusive.     Ibid. 

11.  When,  however,  the  cross-examination  :;  as  to  matters, 
which,  althou;  h  collal    ral,  ti  nd  to  show  the  temper,  disposition 

iwards  the  cause  or  I     ■  parties,  the 
to  these   matters  may  be  contradicted 
Ibid. 

12.  If  a  whether  he  h 

irsuchrepre- 
be  proper,  But  net  in  relation  to  collateral  mat- 

13.  Qn  tendin  disgrace  him, 
may  1>  .  losite  party; 
but  whel  witness  is  bound  to  answer  them  is  doubtful 
Ibid. 

14.  After  a  witness  on   atrial  has  been  cross-examined,  it  ie 


436  EVIDENCE.— III. 

in  the  discretion  of  the  presiding  judge  to  permit  or  refuse  a 
second  cross-examination ;  and  counsel  cannot  demand  it  as  a 
right.     State  v.  Hoppiss,  5  Ired.,  40i>. 

15.  Where  a  deposition  is  read  in  evidence,  the  opposite  party 
may  contradict  the  witness,  by  showing  that  he  has  subsequently 
made  different  statements,  without  having  put  to  the  witness 
the  usual  preliminary  questions,  as  such,  from  the  nature  of  the 
case,  could  not  be  put.     Roberts  v.  OoUins,  •  >  Ired.,  223. 

16.  A  party  does  not  make  one  his  witness  by  taking  his  depp- 
sitii  n,  which  he  declines  bo  read,  or  by  having  him  summoned 
and  then  declining  to  examine  him.  Neil  v.  Childs,  10  Ired., 
l!hr>. 

17.  A  witness  may  refresh  his  memory,  by  looking  at  a  book 
of  entries  kept  by  himself,  without  producing  the  book  on  the 
trial.     State  v.  Cheek,  13  Ired.,  114 

L8.  According  to  the  practice  in  this  State,  the  plaintiff  may 
intro  tuc  and  e:  amine  as  many  witnesses  as  he  'let  ins  necessary 
to  establish  his  ease,  and  if  the  defendant  bring  in  contradictory 
witue  se.s,  the  plaintiff  may  call  in  others  to  corroborate  the  first. 
Outlaw  v.  Hurdle,  1  Jones,  150. 

19.  In  some  cases,  thepresi  •.  in  order  to  save  time 
and  when  he  sees  no  harm  will  result  from  it,  may,  in  Ins  dis- 
cretion, allow  a  leading  question  to  be  put  bya  pari)- to  his  own 
witness,  but  it  is  never  error  to  refuse  it.  Nicliolls  v.  Holmes,  I 
Jones,  360 

20.  On  the  trial  of  a  caj  ital  c;  i  the  court  may,  in  its  discre- 
tion, permit  witnesses,  who  have  been  pn  viously  examined,  to 
be  recalled  and  re-examined  before  the  jury,  after  they  have 
once  retired  to  consider  their  verdict.  State  v.  Nohlett,  2  Jones, 
lis. 

21.  The  rule  for  the  examination  of  a  witness,  jcvhich  forbids 
a  counsel  from  putting  leading  qrj  stions  to  one  whom  he  has 
called,  may  under  certain  circ  i  be  relaxed  or  altogeth- 
er abandoned,  at  the  discretion  of  the  presiding  judi  e;  as  for 
instance,  where  one  witness  is  called  to  contradict  another,  in 
which  the  interrogatory  put  by  the  counsi  1  to  his  own  witness 
may  be  permitted  to  embrace  the  language  proposi  d  to  be  con- 
tradict! d.     Ounter  v.  Watson,  A  Jones,  455. 

22.  A  i  ■■  i  n  is  one  which  sugg  si  to  the  witness 
the  answer  which  the  party  desires;  or  one  v.  hich  is  so  put  as  to 

[y  a  material  fact,  and  to  admit  of  an  answer  by  a  single 
negative  or  affirmative;  though  neither  the  one  nor  the  other  is 
directly  suggested.     Ibid. 

2o.  The  exereise  of  a  discretion   by  tl  i    permitting 

or  refusing  a  leading  question  to  be  put  by  a  counsel  to  his  own 
witness,  cannot  ordinarily  be  revi  i  d  upon  appeal,  but  it  may  be 
so,  when  its  effect  is  to  deprive  the  party  of  testimony  which  he 
might  otherwise  have  procured.     Ibid. 


EVIDENCE.— IT.  437 

IV.       COMPETENCY    OF    WITNESS    RESTORED    I1Y    A    RELEASE    OR   OTHERWISE. 

1.  When  a  witness  is  incompetent  by  reason  of  his  being  se- 
curity tu  an  appeal  bond,  the  incompetency  may  be  removed  by 
the  party's  giving  another  appeal  bond  with  new  sureties. 
Ia  .-  nd  r  v.  Pritchard,  2  Hay..  337,  (513.)  S.  P.,  McCuUoch  v. 
Tyson,  2  Hawks,  336. 

2.  Th  ■  interest  to  disqualify  a  witness  must  exist  at  the  time 
of  the  trial,  and  it.  before  that,  the  witness  removes  the  inte  'est 
by  releasing  it,  or  does  all   he  can  to  remove  it,  as  by  filing  a 

k's  office  when  the  party  is  not  present  tu  ac- 
competi  ucy  is  restored,     Perry  v.  Fleming,  2  Car. 
L.  i;.,  458,  (344.) 

;>.  A.  witness,  who  releases  a  particular  interest  which  he  has 
in  an  ei  i    -  u  ipetent,  where  it  does  not  appear  that  he  has 

any  other.  1  Dev.  and  Bat.,  284. 

4.  Upon  the  trial  of  an  unmenced  by  original  attach: 
meat,  when  the  plaintiff  wii  hes  tu  examine  a  person  who  is 
surety  to  :  a  achment  bond;  the  court  may  permit  the  bond 
to  be  cancelled  upon  another's  being  given  ia  its  stead     Gar- 

-.  2  Dev.  and   Bat.,  -Mil'. 

5.  '  ty  cannot,  by  refusing  his  assent  t:>  a  release  or  sur- 
render  ti  n  Lered  by  a  witness  on  the  other  side,  exclude  his  tes- 
timony. Depositing  I  he  release  in  the  clerk's  office  will  be  suf- 
lirion  he  witn    s  to  testily.  Marchant,  3 

Bat,  40. 
(J.  In  an  action  by  an  administrator  to  recover  ad  :  I  due  to 
his  intestate,  a  release  by  one  of  the  next  kin  to  the  administra- 
tor of  all  hi  i  iuteresl  in  the  said  debt,  it  recc\  i  also  a 
release  by  the  administrator  to  the  said  next  of  kin  of  all  claim 
upon  him  for  any  part  of  the  costs  of  the  suit,  if  he  should  fail, 
will  render  the  uext  of  kin  a  competent  witness  for  the  adminis- 
trator. And/'/  seems  the  release  by  the  next  of  kin  to  the  ad- 
ministrator would  alone  render  him  competent.  Moffit  v.  Lane, 
2  1  red..  254. 

7.  The  vendor  of  personal  chattels  may  be  made  competent, 

by  a  re  I    m  his  vendee,  to  prove  a  title  in  him.     Freeman 

v.  L,  wis,  5  [red.,  91. 

8.  On  the  trial  of  an  action  of  ejectment,  the  court  may,  in 
its  discretion,  allow  one  of  the  lessors  to  be  stricken  out  of  the 
declaration,  upon  the  cost  being  deposited  in  court,  ami  mutual 
releases  executed;  and  the  party  stricken  out  may  then  be  a 
witness,  as  if  his  name  luul  never  been  in  the  declaration.  Car- 
son  v.  Smart,  12  Ired.,  369. 

9.  One,  who  has  signed  a  prosecution  bond,  may  become  a 
competent  witness  for  the  plaintiff,  by  the  sustitution  of  a  new 
bond,  under  an  order  of  the'  court,  that  such  new  bond  shall  be 
substituted-  in  the  place  of  the  other  which  is  to  be  cancelled; 


438  EVIDENCE.— IV.-V. 

and  the  witness  will  be  competent,  though  the  first  bond  be  not 
present  to  be  actually  cancelled.     Otcy  v.  Hoyt,  3  Jones,  407. 

10.  A  joint  purchaser  of  a  chattel  cannot  be  made  competent, 
by  a  release  of  his  interest,  as  a  witness  for  his  co-purchaser,  in 
an  action  for  a  deceit  in  the  sale  of  the  property  to  them.  Scott 
v.  Brown,  3  -Tones,  541. 

11.  One  of  the  several  partners  of  a  firm,  being  a  party  to  a 
suit,  can  make  a  good  release  under  seal  to  an  interested  witness. 
so  as  to  restore  his  eompetencj  ;  because  such  release  will  oper- 
ate to  discharge  the  witness  from  liability  to  the  other  members 
of  the  firm.     CrutweU  v.  DeBosset,  5  Jones,  •ill;). 

12.  The  grantor  by  deed  of  a  slave,  can,  by  means  of  a  release 
from  his  grantee,  be  made  a  competent  witness  for  him.  Biiie 
v.  Wooten,  7  Jones,  441. 

V.       IMPEACHING    THE    CREDIBILITY    OF    A    WITNESS. 

1.  The  State  may  impeach  the  credibility  of  its  own  witness, 
by  proving  that  on  former  occasions  he  had'  given  a  different  ac- 
count of  the  transaction  from  that  which  he  swears  in  court. 
State  v,  Norris,  1  Hay.,  429,  (495.) 

2.  To  discredit  a  witness,  it  may  be  asked  if  he  is  no1  a  man  of 
abaci  mural  character,  the  question  not  being  confined  to  hia 
character  as  a  man  of  veracity.  State\.  Slallinc/s,  2  Hay.,  300, 
(490.)     S.   P.,  ;■  ate  v.  BosweU,  2  Dev.,  209. 

3.  A  party  cannot  impeach  the  credibility  of  his  own  witness. 
But  by  calling  back  a  witness  of  the  opposite  party,  he  does  not 
thereby  make  him  his  own  witness.  Sawrt  y  v.  .'  •  rrell,,  2  Hay., 
397,  (597.) 

4.  Where  witnesses  are  called  to  prove  declarations  made  by 
a  witness  inconsisent  with  what  he  deposes  on  the  trial,  it  may, 

.in  reply,  be  shown  that  he  made  other  declarations  in  affirmance 
of  wuai  lie  swears  on  the  trial,  and  that  he  is  still  consistent 
with  himself.     Johmonv  Patterson,  2  Hawks,  Lx.'i. 

5.  A  witness,  introduced  to  impeach  the  general  character 
of  another,  should  no!  exress  an  opinion  founded  upon  particu- 
lar facts,  nor  upon  the  hearsay  of  stangers  to  the  witness, 
whose  testimony  it  is  intended  to  discredit.  But  if  his 
information  be  derived  from  proper  sources,  he  may  be  asked 
whether  he  would  believe  the  other  upon  his  oath,  or  whether 
the  other  is  worthy  ot  credit  upon  his  oath.  State  v.  BosweU,  2 
Dev.,  209.     But  see  post  sec  33. 

6.  Proof  of  particular  facts  is  inadmissible  in  impeaching  a 
witness,  because  such  proof  tends  to  a  number  of  collateral 
issues,  and  neither  the  witness  nor  the  party  producing  him 
can  be  prepared  to  meet  them.  Barton  v.  Morpkis,  3  Dev.. 
520. 

7.  A  witness,  called  to  support  another,  cannot  be  asked  wheth- 


EVIDENCE.—  V.  439 

pr  he  has  not  heard  that  other  accused  of  a  particular  larceny. 
Ibid. 

8.  Proof  of  particular  facts  is  inadmissible  to  impeach  a  wit- 
ness, and  the  opinion  of  an  impeaching  witness  is  proper  only 
when  it  coincides  with  the  general  reputation  of  the  person  im- 
peached; and  a  witness,  who  swears  that  he  did  not  believe 
another  to  be  honest,  but  who  does  not  know  the  opinion  of 
others,  is  incompetent.  Downey  v.  Murphey,  1  Dev.  and  Bat., 
82. 

9.  To  impeach  the  credibility  of  a  witness,  by  proving  that  he 
swore  differently  as  to  a  particular  fact  on  a  former  trial,  it  is  not 
necessary  tha  leaching  witnsss  should  be  able  to  state  all 
that  the  impeached"  witness  then  depose. I.  It  is  sufficient  it  he 
be  able  to  prove  the  repugnancy  as  to  the  particular  fact,  with 
regard    to  which  it  is  alleged  to  exist.      Ingram  v.    Watkins,  1 

i  !  Bat.,  442. 

10.  /  ion,  made  in  the  presence  andhearing  of  a  wit- 
ness  an  I  no  radicted  by  him,  is  proper  to  lie  submitted  to 
the  jm  that  hi  :quiesced  in  and  admitted  the 
truth  of  h  aration;  and,  it  at  variance  with  his  testimony 
on  the  trial.  1  to  impeach  his  credibility.  Radford  v. 
Rice,  2  Dev.  and  Hat.,  39. 

11.  Declarations  of  a  witness,  inc<  nsistent  with  his  testimony 
on  trial,  mai  be  given  in  <  vidence  to  discredit  him.  Murphy  v. 
McNeil,  2  Dev.  and  Bat.,  244. 

12.  A  party  may  prove  a  fact  to  he  different  from  what  one 
of  his  own  witnesses  lias  stated  it  to  be.  That  is  not  discredit- 
iting  his  own  witness.     Spencer  v.  White,  1  [red.,  236. 

13.  A  witness,  who  is  introduced  for  the  purpose  of  discredit- 
ing another  witness  in  the  cause,  must  profess  to  know  the  gen- 
eral repu  ati<  n  '  the  witness  sought  to  be  discredited,  before 
he  can  be  heard  to  speak  of  his  own  opinion  or  of  the  opinions 
of  others,  as  to  the  reliance  to  be  placed  on  the  testimony  of  the 
impeached  witness.     States.  Parks,  3  Ired,,  296. 

14.  'I!-  party  impeaching  a  witness  should  enquire  of  the 
attacking  witness,  whether  he  has  tin;  means  of  knowing  the 
general  '  ia  ■  of  the  witness  impeached.  And  such  attacking 
witness  may  answer  affirmatively,  without  saying  that  he 
what  a  majority  of  the  neighbors  say  of  the  impeach  d  witness, 
as  such  is  not  the  only  means  of  acquiring  a  knowledge  of  gen- 
eral character.  But  the  attacking  witness  cannot  be  asked  by 
the  party  who  calls  him,  simply,  ^imohat  estimation  the  impeached 
witness  was  held  in  the  neighborhood."  State  v.  O'Neale,  4 
Ired.,  88. 

15.  A  party  is  never  permitted  to  introduce  general  evidence 
to  discredit  his  own  witness;  but  if  a  witness  prove  facts  in  a 
cause,  which  make  against  the  party  who  called  him,  he  may  call 


440  EVIDENCE.—  V. 

other  witnesses  to  prove  that  these  fac^s  were  otherwise.    SheJton 
v.  Hampton,  (3  [red.,  216. 

16.  It  may  be  proved  in  the  trial  of  a  capital  case  that  a  witness 
is  a  near  relation,  as  a  mother  or  sister,  of  the  prisoner,  in  order 
to  impair  her  credibility.     State  v.  Ellington,  7  [red.,  61. 

17.  When  a  near  relation,  as  a  mother,  is  offered  as  a  witness 
for  a  prisoner;  it  is  not  error  for  the  court  to  charge  "that  the 
law  regarded  with  suspicion  the  testimony  of  near  relations,  when 
testifying  for  each  other,  that  it  was  the  province  of  the  jury  to 
consider  and  decide  on  the  weight  due  to  the  testimony;  and  as 
a  general  rule,  in  deciding  on  the  credit  "I  thewitnes  ses  on  both 
sides,  they  ought  to  lock  to  their  deportmi  nt,  their  capacity  and 
opportunity  to  testify  in  relation  to  the  transaction,  and  the 
relation  in  which  they  stood  to  the  party."  State  v.  Nash,  8 
[red.,  35. 

18.  To  impeach  the  credibility  of  a  witness  by  proving  that 
he  swore  differently  as  to  a  particular  fact  on  a  former  trial,  it  is 
not  necessary  that  the  impeaching  witness  should  be  able  to 
state  all  that  the  impeached  witness  tl  d  to;  itissufficient 
if  he  be  able  to  prove  the  repugnancy,  as  to  th  ar  fact, 
with  regard  to  which  it  is  alleged  to  exist.  Edwards  v.  Sullivan, 
8  Ired., 

19.  Where  a  witness  has  been  examined  on  one  side,  it  is  not 
eompetent  for  the  opposite  party  to  introduce  evidence  to  show 
his  bias,  feeling  or  partiality  towards  the  person  introducing 
him,  unless  the  witness  has  hiinsell  been  previously  quel 

as  to  that  point,     Ibid. 

20.  Where,  with  a  view  to  discredit  a  witness,  evidence  of 
inconsistent  statements  made  by  liim  is  introduced  by  the  ad- 
verse party,  it  is  proper  to  permit  the  party  introducing  him  to 
prove  other  statements  conforming  to  the  testimony  given  on 
trial.  And  the  witness,  whose  testimony  is  attacked,  may  be 
examined  on  that  point     State  v.  George,  8  Ired.,  324. 

21.  When  a  witness  is  impeached  by  showing  that  he  has 
made  contradictory  statements,  it  is  perfectly  regular  in  reply 
to  show  that  lie  has  made  consistent  statements.  Hoh  v.  Flem- 
ing, 10  Ired.,  263. 

22.  Where  a  witness  is  impeached  on  the  ground  of  had  char- 
acter, evidence  may  be  given  of  previous  statements  made  by 
him,  consistent  with  his  testimony  on  the  trial.  State  v.  Docv, 
10  Ired.,  469. 

23.  Although  an  impeaching  witness  may  be  examined  as  to 
the  general  moral  character  of  the  witness  impeached,  and  also 
as  to  his  character  for  truth  when  on  oath,  and  when  not  on 
oath,  it  is  not  necessary  to  put  these  questions  in  any  particular 
order.     Ibid. 

24.  Where  a  witness  for  the  plaintiff  on  being  examined  as 
to  a  particular  transaction,  stated  that  he  hadipaid  a  certain  sum 


EVIDENCE.— V.  441 

of  momey  to  the  plaintiff,  and  tire  witness's  credit  was  attacked 
and  the  transaction  impeached  for  fraud,  it  was  held  that  it  was 
competent  for  the  plaintiff  to  show  that  he  Lad  entered  the 
payment  on   this  bonks  at  the  time  alleged.     Fain  v.  irds. 

11  Ired.,  305. 

~2~>.  < 'n  the  trial  of  an  ejectment,  it  became  important  for  the 

plaintiff  to  prove  that  the  defendant  was  tenant  of  A;  and  for 

died  A  himself,  who  testified  to  the  fact,  but 

ion    produced  a  conveyance,  dated  moi 

seven  ;  i  ment  of  the  suit,  and  slated 

that  he  had  -    a  inually  in  the  peaceable 

Id  that   the  plaintiff  could  •  ;h  the 

character  of  A,  to  ■  testimony  as  to  the  date   of  the 

deed,  a  I  to  do,  though  he  was  at  liberty  to  show,  it  he 

could,  that  the  witness  was  mistaken  as  to  that  fact.  Hice  v. 
Cox,  12  [red.,  ola. 

26.  There  is  a  distinction  h  jrediting  a  witne 
show;.,              I I                       different  fr< 

sented  them.     In  the  latter  case,  the  discrediting  oi 

I,  not  primary;  and  the  evidence  may  be  disc 
and  tli  of  the  witm       '  lied.     Ibid. 

27.  ked  on  ere.-  s  exami 
he  not  been  for  an  infaun  n 

that  hi  ■  i  testion.    Where,  however,  such 

:.  and  the  judge  left  it  to  the  wit  i 
wnethi  :  i  '  ed,  it  was  In ,;    tl  i\  such 

refusal   might  be  ipon   by  counsel  in  addressing  the 

jury,   as    wai  nee  that  he   was  unwor  I 

!    v.  Garrett,  Busb.,  357. 

28.  When  I  itor  for  the  State,  as  upon  affidavit  for  a 
contin  upon  the  authority  of  a  witness  in  the  cause, 
who  i-  ay  matter  material  to  the  issue,  and  afterwards 
the  witness  testifies  differently,  testimony  ma;  ived  to 
prove  the  diversity,  for  the  purpose  of  discrediting  the  witness. 
State  v,  McQm  ■  n,  1  Jones  177. 

29.  Where,  on  a  trial  for  murder,  the  declarations  of  the  de- 
ceased have  been  offered  in  evidence,  and  an  atteni]     has  been 

•  n  the  other  side,  to  destroy  the  effect  of  such  declarations, 
by  showing  the  bad  character  of  the  deceased;  the  State,  for 
the  purpose  of  corroborating  the  evidence,  may  prove  that  the 
deceased  made  other  declarations  of  the  same  purport,  a  few 
moments  after  he  was  stricken,  though  it  did  not  appea*  that  lie 
was  then  under  the  apprehension  of  immediate  death.  State  v. 
Thoniason,  1  Jones,  274. 

30.  When  the  credibility  of  a  witness  has  been  attacked,  from 
the  nature  of  his  evidence,  from  his  situation,  from  his  bad 
character,  from  proof  of  previous  inconsistent  statements,  or 
fi'om  imputations  cast  upon  him  in  cross-examination,  the  party 


442  EVIDENCE.— V. 

introducing  him  may  prove  other  consistent  statements,  for  the 
purpose  of  corroborating  him.     March  v.  HarreU,  1  .'wins,  329, 

31.  A  witness  may  be  asked,  on  cross-examination,  in  order 
to  discredit  him,  whether  he  had  not  committed  perjury  in  the  State 
of  Georgia.     State  v.  March,  1  Jones,  526. 

32.  Before  a  witness  can  be  examined,  to  impeach  another 
witness  by  proving  inconsistent  statements,  the  impeached  wit- 
ness must  be  asked  as  to  such  statements,  in  order  that  he  may 
have  an  opportunity  to  explain  them.  And  this  rule  applies  to 
depositions,  unless  the  inconsistent  statements  were  made  after 
the  deposition  was  taken.     Hooper  v.  Moore,  3  Jones,  428. 

33.  An  impeaching  witness  ought  not  to  be  asked  whether,  if 
he  were  a  juror,  he  would  believe  the  impeached  witness  on  his 
oath.     Tbid. 

34.  Where,  upon  the  trial  of  a  slave  for  a  capital  offence,  the 
credibility  of  slave  witnesses  is  called  in  question,  the  judge 
may  properly  call  the  at 'rent  ion  of  the  jury  to  the  fad  that  they  are 
fellow  servants  of  the  prisoner,  and  he  may  illustrate  the  matter, 
by  comparing  it  to  eases  of  witnesses  nearly  related  in  blood  to 
a  prisoner.     State  v.  Nat,  li  Jones,  114. 

35.  Where  witnesses  upon  a  trial  exhibit  feeling  and  partiali- 
ty for  the  pru  iner,  the  judge  may  properly  call  the  attention  of 
the  jury  i<>  ii.  asaffecting  their  credibility. 

36.  Wl  ire  the  credit  of  a  witness  was  in  •  itheground 
of  his  partiality  to  the  prisoner,  who  was  a  fellow  servant,  and  to 
rebut  the  imputation  it.  was  proved  for  i1  that  he  and 
the  witness  had  lately  had  a  fight ;  '  to  be  competent 
for  the  Stale  In  show  that,  next  morning,  after  the  offence  was 
committed,  the  prisoner  and  the  witness  v  u  <  a  conversing 
together  in  a  triendly  manner,  and  that  the  enquiry  might  be 
made  without  asking  the  witness  himself,  a  to  the  terms  on 
which  he  stood  towards  the  prisoner.  Statev.  Oscar,  7  Junes, 
305. 

37.  For  the  purpose  of  showing  that  a  witness  for  the  State 

cited  by  the  horrible  crime  charged  against  the  prisoner, 
a  slave,  am!  was  not,  therefore,  fully  to  he  relied  on,  it  was  lielA 
competent  for  the  prisoner's  counsel  to  ask  him.  on  cross-examina- 
tion, whether  he  had  nut  taken  up  and  whipped  other  negroes 
in  relation  to  the  alleged  crime.     State  v.  Sam,  <s  Jones,  150. 

38.  fur  the  purpose  of  weakening  the  force  of  a  witness'  test- 
imony, he  may  he  asked  on  cross-examination,  as  to  his  temper 
and  fueling  towards  the  cause,  independently  of  any  prejudice  or 
ill  will  towards  the  prisoner  personally.     Ibid. 

39.  Where,  in  a  suit  upon  an  apprentice  bond,  the  question 
was,  whether  the  relator  was  of  age  when  the  action  was  com- 
menced, and  his  mother  testified  that  In-  was;  it  arts  held,  that 
a  record  of  births  made  in  the  family  Bible,  under  the  dictation 
of  the  mother,  by  a  person  since  deceased,   several  years  after 


EVIDENCE.— V.-VI.  44;5 

the  birth  of  the  relator,  but  before  lie  was  bound  out,  was  ad- 
missible in  evidence  to  corroborate  her  statement.  Wiseman  v. 
Cornish,  8  -Tones,  218. 

40.  The  fact,  that  a  witness  stands  in  the  relation  of  mother  to 
the  party  for  whom  she  testifies,  does  not,  as  a  matter  of  law,  give 
a  bias  to  her  statement,  by  affi    '    g  her  i  '.ion,  but  her  rela- 

tion to  the  party  is  a  proper  matter  for  the  consideration  of  the 
jury.     Ibid. 

See  (Evidence — In  criminal  proceedings  and  indictments. 
14-19-93-96-120.) 

VI.       DEPOSITIONS. 

1.  In  taking  depositions  where  a  party  lives  out  of  the  State, 
notice  may  be  given  to  the  absent  party,  or  to  his  attorney  in 
court.  Savage  v.  Rice,  .Mar.  20,  (4.)  (See  Rev.  Code,  ch.  31, 
sec.  63.) 

2.  The  deposition  of  a  witm       i  another  State   may 

I  though  he  be  in  this  State  at  tb  time  of  the  trial,  and 
had  been  summoned  in  the  cause,  while  in  the  State.  Meredith 
v.  K,    '.  M    .'..  2  •.  (17.) 

3.  i>  po  ,  which  have  been  read  in  the  county  court,  will, 
upon  a  a  rdinarily  be  suffered  I  in  the  superior 
court,  u  u  th<  pn  amption  that  they  had  taken  after 
propi  r  !.  itice.  Ko  Mar.  37,  (26,) S.  P.  Rutluerford 
v.  Nelson,  1  Hay.,  105,  (122.) 

4.  A  aol  read  a  depositi  q  unless 
he  can  prove,  by  other  testimony  than  his  own  affi  la^  it,  the  sick- 
nei  id  inability  of  the  witm  is.  ar.  52, 
(48,)  S.C.I  Hay.,  227,  (260,)  S.  P.     An                           .71.(241.) 

5.  !  to  1  ake  a  deposition  in  Tenn  ■  and  6th 
days  of  a  particular  month  was  held  good.    Kerri  ander,  \ 
1  Hay.,  25,  (34.) 

i).   It  is  not  a  valid,  objection  to  the  rea  osition, 

that  it  has  not  been  signed  by  the  witne  '       ;  i  v.   JVork, 

1  Hay..  105,  (121,)  L05,  (122.) 

7.  When  a  party  lives  out  of  the  State,  end  his  attorney  has 
died,  notice  to  him,  for  the  purpose  of  taking  a  d  sposition,  by  the 
other  party,  may  be  given  by  advertisement  in  some  m  vspaper 
published  in  this  State.     MaxioeU-v.  Holland,  1  Hay.,  302,  (349.) 

8.  A  deposition,  certified  to  have  been  takenon  blip  day,  and  in 
the  county  in  South  Carolina,  as  specified  in  the  notice,  but 
without  stating-  the  particular  plage  mentioned  in  the  notice, 
cannot  be  read.  English  v.  Gamp,  1  Hay.,  358,  (410,)  S.  P.,  1 
Hay.,  395,  (454,)  in  the  note. 

9.  Notice  to  take  depositions  at  the  house  of  "John  Archelaus 
Ellmore,"  the  deposition  appearing  to  have  been  taken  at  the 
house  of  '-John  Ellmore,"  held  good,  as  they  will  be  presumed 


444  EVIDENCE.—  VL 

to  be   tin   names  of  the  same  person.     EJhnore  v.  MiUs,  1  Hay., 
359,  (412.) 

10.  It  is  the  common  practice  to  admit  the  depositions  of  all 
public  officers,  the  duties  of  whose  office  oblige  them   to  attend 
at  a  particular  place  for  the  discharge  thereof,  as.  in  thii 
collector  of  the  customs.     Mushrowv.  Graham,  1  Hay..  361,  (414.) 

11.  The  notice  was  thai  a  deposition  would  1"'  taken  on  a 
certain  day  a1  Flalifix  Court  House,  in  Virginia,  and 
expressed  that  it  was  taken  at  the  house  of  Manning,  at  Halifax 
Court  House,  Virginia,  the  deposition  was  rejected,  upon  its 
appearing  that  M  inning's  house  wi  at  from 
the  court  houi    .                 v.  Taylor,  1  Hay.,  381,  (439.) 

12.  Whether  a  notice  to  take  a  deposition  must 

upon   the  per    <",   or  left  at  his  residen  \y    w 

Fairman,  I  1  [ay.,  t04,  (465.) 

13.  V  i  isition  is  to  1  tal  in  a  town,  some  house 
in  the  town  ■  . 

Lester,  I  :s«.) 

14.  [f  1  '  riers  ;  j  m  er  that 
appointed  for  taking  the  deposition,  and  then  take  it,  it  may  be 
read;  bin    th    ■   ci ot   adjourn  to  a  distant  day. 

12,  (.428.) 

15.  It  fad        I 

whicb  i  lie   party  may  prove  it   was 

place  I   in  the  notice;  and  the  comrnissii      I 

sent,  may  id  the  caption.     Anonymous,  2  Hay.  244,  (432.) 

]  6.  i,  which  does  uol  r  in  its  o; 

body,  b  liat  parties  it  was  taken,  cam  L     Mur- 

ray v.  Hay.,  290,  (172.) 

17.   The  •    permits  the   person,   who    has    served  the 

notice   that  a  desposition   will   be  taken,  to  appear  before   the 

•  commissioner!  and  swear  to  that  fact;  and  if  it  be  shown  by  the 

certificate  of  the  commissioners,    the  deposition  may  be  read. 

Sawrei)  v.  Murrell,  2  Hay,  397;  (597.) 

1<S.  \\  here  there  are  two  commissioners,  one  alone  cannot 
amend  a  r<  turn  made  by  both.     Ibid. 

VJ.  Depositions,  taken  by  one  party  and  filed  in  court,  may  be 
read  by  the  pther  party  without  proof  of  notice;  and  if  so  read, 
they  may  be  read  on  a  second  trial  by  the  party  who  took 
them,  without  proof  of  notice.  Collier  v.  Jeffrey,  2  Hay.,  400. 
(603.) 

20.  When  the'  notice  is  to  take  depositions  between  certain 
hours  of  the  day,  they  shall  not  be  read,  unless  it  appeal's  that 
they  were  taken  within  the  time  specified,  Farrar  v.  Hamilton, 
Tay,  10,  (7.) 

21.  Alter  a  writ  was  issued  and  before  it  was  returned,  the 
plaintiff,  without  any  order  for  the  purpose,  took  out  a  commis- 
sion to  take  testimony,  held,   that  a  disposition  taken  under  it 


EVIDENCE.— VI.  445 

was  irregular  and  could  not  be  read.  Holbrook  v.  Martin,  Conf. 
Rep.,  513,  (562.)  (Rule  now  altered,  pee  Rev.  Code,  eh.  31, 
see.  63.) 

22.  A  notice  to  take  depositions  of  a  witness  living  in  Geor- 
gia, on  one  of  three  specified  successive  days,  is  sufficient.  Har- 
ris v.  Pet  rson,  2  Car.  L.  II..  471,  (358.) 

23.  In  ordinary  cases,  tin-  fixing  the  time  of  notice  to  take 
depositions  belongs  to  the  judge  who  orders  the  commission; 
but  where  it  appi  ared  from  the  record,  that  an  order  for  commis- 
sions was  made  without  fixing  the  time  of  notice,  it  was  held, 
that  if  the  ]  eed  a  to  the  time,  the  judge  presid- 
ing, when  the  depositions  were  offei  L,  the  suf- 
ficiency of  the  notic  ■.     Cherry  v.  Slade,  2  Hawks, 

24.  A  dej  ch  shows  that  the  witness  was  sworn  to 
its  trutl  ig  that  he  was  sworn  to  testily  the  truth, 
the  whole  truth,  and  nothing  buf  the  truth,  is  adini  sible  in 
evidence.      WeOhom  v.   Youngi   .  ■">  Hawks.  205. 

25.  \  deposition  must  be  sealed  up  by  the  commissioners,  so 
as  to  prevent  inspection  and  alteration;  it  ni  certified 
under  the  seals  of  the  commissioners.  Ward  v.  Ely,  1  Dev,, 
372. 

26.  Notice  to  a  particular  agent  to  take  th  dep  >n  of  a 
aon-r  ;  '  '  A  e  s  I  -  be  read  absolutely,  is  uot  supported  bya 
rule,  authorizing  notice  to  that  agent  to  take  the  deposition  of 
the  same  witness  de  bene  esse,  the  witness  being,  at  the  granting 
of  the  rule,  a  resident  of  this  State.  Li  Lee,  1  Dev., 
164. 

27.  Notice  to  take  a  deposition,  on  a  particular  day  of  every 
week  for  three  successive  months,  is  insufficient.  Beikllv.  State 
Bank,  1  Dev.,  483.  _ 

28.  Where  a  notice  specifies  that  a  deposition  will  be  taken 
between  certain  hours  of  the  day.  the  deposition  cannot  be  read 
unless  it  appears  to  have  been  taken  between  the  hours  specifi- 
ed.    Harris  v.   Yarborongh,  4  Dev.,  166. 

29.  A  party  offering  the  deposition  of  a  witness,  examined  in 
the  cause,  for  the  ,  contradicting  him,  will  not  be  per- 

iy  of  the-deposition ;  but,  if  lie  introduce 
it.  lie  must  read  the  whole.     Barton  v.  Morphis,  -1  Dev.,  240. 

30.  The  deposition  of  a  woman  far  advanced  in  pregnancy, 
and  who,  it  was  proved  on  the  trial,  had  probably  just  been  de- 
liver! d,  co   i      u  ithin  th  spirit  of  the  act  of  1803,  and  is  admis- 

(See  A  v.  Code,  ch.  31,  sec  6     i 

31.  A  commission,  directing  the  taking  of  a  deposition  to  be 

i  the  trial  of  a  suit,   depending  in  the  -'superior  court  of 
law  and  equity, '  instead  of  the  "  superior  court  of  law,"  is  valid. 
rang  v.  Dalton,  4  Dev.,  568. 

32.  A  party  offering  a  deposition  is  not  bound  to  read  a  state- 
ment of  irrelevant  facts  contained  in  it;  neither  can  the  other 


446  EVIDENCE.— VI. 

party  read  it  for  the  purpose  of  contradicting  it.      Downey  v. 
iturphey,  1  Dev.  and  Bat,  82. 

33.  The  ac,t  which  requires  process  to  be  returnable  to  the 
term  next  ensuing  its  teste,  does  not  apply  to  commissions  to 
take  depositions,  which  may  be  made  returnable  to  any  subse- 
quent term.     Duncan  v.  Hill,  2  Dev.  and  Bat.,  291. 

34.  Commissions  to  take  testimony  are  issued  at  the  instance, 
and  for  ihi'  benefit,. of  one  of  the  parties,  and  he  will  usually 
make  them  returnable  at  the  earliest  day  consistent  with  con- 
venience; but  if  through  '  a  wish  to  delay  the  trial,  he 
should  not  do  so,  the  non-execution  of  the  commission  will  be 
held  a  i  in  ufficieni  reasi  q  for  asking  a  continuance  of  the 
cause.      /'.,'  I. 

35.  A  notic  i  to  take  a  deposition  on  Sunday  is  not  good,  and 
a  deposits  n  tal?  m  on  such  notice  must  be  reject*   i.     Sloans. 

WiUiford,  3  lied.,  307. 

3(5.  A  seal  of  the  court  is  essential  to  the  validity  of  a  com- 
mission, to  tal  my  by  depositions,  direct  ms  in  a 
different  county,  from  that  of  the  court  from  which  it  issues. 
Freeman  v.   '.<  wi  \  5  [red.,  91. 

37.  The  deposition  of  a  witness,  taken  in  a  criminal  case  before 
th  iii  i  ite,  may  be  read  in  evidence  on  the  trial 
of  the  prisoner,  if  the  witness  he  then  dead  Siate  v.  Valentine, 
7  Ired.,  225.     (See  Rev.  Code,  ch.  35,  sec.  1.) 

38.  in  such  .i  ca  e  the  deposition  may  be  usedeithi  r  in  chief 
by  either  party,  if  the  witness  be  dead,  or  if  he  be  living  it  may 
be  used  upon  the  cross-examination  of  the  witness  in  court.    Ibid. 

39.  The  proof  of  such  a  deposition  is  usually,  but  not 
necessarily,  by  the  magistrate  or  his  clerk;  but  in  this  State, 
there  hi  ing  no  statutory  direction  as  to  the  mode  of  proof,  the' 
prol  ist  be  a  matter  of  sound  discretion  in  the  presiding 
judge,'  n  n  view  the  general  principles  of  evidence,  alike 
neci  i  of  the  accused  and  the  due  administra- 
tion oi  Hence,  it  was  held,  that  where  the  examining 
magis  rate  was  oeci  ssaril'y  absent,  in  the  discharge  i  '  high  pub- 
He  duties,  pi-oof  by  the  clerk  of  the  superior  court,  to  which  the 
depositi  en  returned  according  to  law,  thai  he  was 
pri  se  it  when  po  ition  was  taken,  that  the  exa  nin  ition  of 
the  mi  ivas  written  down  by  himself,  and  thai  le  depo- 
sition, returned  to  his  office  and  offered  in  evidei  s  in  the 
proper  handwriting  ol  :'  agi  trate,  was  sufficienl  t'oaul  horize 
the  rea  ling  of  1        '  iposition.     Ibid. 

40..  Where  t  was  taken  on  the  28th  December,  1847, 

on  a.  notice  served  on  the  26th  of  thai  month,  under  the  act 
requiring  tbr  -  da;  i  notice  and  the  opposite  party  appeared  at 
the  time  and  object  d  to  the  length  of  notice,  and  declined  to 
e,  it  was  held  that  the  deposition  was  inadmissible. 
Beasley  v.  Downey,  10  Ired.,  284. 


EVIDENCE.— VI.  447 

41.  Of  the  days  of  notice  for  taking;  depositions,  one  is  inclu- 
sive and  the  other  exclusive.     Ibid. 

42.  It  is  no  ground  of  exception  to  a  deposition,  that  the  notice 
was  given  to  take  the  depositions  of  A,  B  and  C,  "and  others," 
and  tin  ::  of  neither  A,  B  nor  C  was  taken.  McDugald 
v.  Smith,  li  Ired.,  57(3. 

43.  The  depo  ition  of  an  absent  witness  maybe  received  in 
evidence  under  the  act,  Rev.  Stat.,  ch.  31,  sec.  68,  whenever  the 
witness  has  left  the  State,  either  with  an  intention  of  changing 
his  domicil,  or  under  the  expectation  of  beingabsent  for  a  time, 
which  will  include  two  terms  of  the  court,  sa'j  si  mon  In.  But 
it  cannol  ''■  ,.when  the  witness  is  al  I  porarily 
for  a  short  time,  as  in  the  case  of  a  seaman  on  i  to  New 
York  or  CI  I  on,  when  his  return  maj  i  two  or 
three  Alexander  v.  Walker,  13  Ired.,  13. 
(See  Ri  \                     L.  si  c.  63. ) 

44.  A  ti  taken  at  ;i  place  out  of  this  State,  on  the 
Monday  "hi  at  which  the  suit  was  tri  ate,  is 
not  ad  ni    ible  in  evidence.     Taylo                                     ;|i. 

45.  \\  gavi  Dotice  that,  on  a  spei  I  day,  he 
would  take  a  in  "at  the  house  of  W.  i'..  (the  wi 

to  1  a    i  ■  ■■    now  pending  in    tl  ioi 

court  of  I;  ity,  wherein  I  am  plainti  I  ■•  id  yon 

are  d  if!  .:."  without  mentioning-  in  what  county  the  witness 

:ounty  the  suit  was  pendinj  ingno 

evidence  thai    there  was  any  other  W.  P.,  or  :    i  nit  be- 

tween  the  par  i  s  than  th  •  oneon  trial;  it  was  lwldtha.t  the  no- 
tice wa  \    Kinsey,  6  Jones,  38. 

4(i.  \  [owing  clerks  to  pass  upond  applies 

only  to  the  ■    |   ■    tiom    of  competeul   witne  ,  there- 

fore, he  pi     ed  upon    and  allowed    one  to   be    read,  which  was 
taken  i  ity,  tinder  a  corami     on  ni        seal,  it 

■•■  ■     .  depoi  ition  was  inadmii    ible  rn  v.    1/7/- 

iams,  6 .  .        (S       ftev.  ( lode,  ch.  '■ 

47.  A  ition    of  a   place,  in   a  slighl    particular,  in  a 

notice   i  i   r..  will  be  no  objection  to  th 

if  there  terms  oi  description  in  tin 

uch  place  may  be  identified.     Pm 
rones,  102. 

i,  reciting  that  it  issued 

from  the  i  '  c ity  ( there  being  no 

such  (  ivitpendi    g  in  the  superior  ■  thai  coun- 

ty, whi  was  authenticated  by  th      ;    iatu]     of  the 

clerk,  ai  Ji  <  f  that  court,  is  good,  notwithstanding  the 

.   r'iii'i-//,  8  Jones,  495. 

See  I  the  superior  to  the  supreme  court,  (111.) 


448  EVIDENCE.— VII. 

VII.   HEARSAY  AND  COMMON  REPUTATION. 

1.  General  reputation,  or  hearsay,  is  admissible  as  evidence  in 
eases  <if  boundary.  Stum/in  v.  Bains,  1  Hay.,  238,  (273.)  S.  P., 
Harris  v.  Potuell,  2  Hay., 549,  (535.)  Tate  v.  Southard,  1  Hawks. 
45. 

2.  The  rule  of  admitting'  hearsay  to  prove  the  boundaries  of 
land  must  lie  confined  to  what  deceased  persons  have  said;  for 
if  they  be  alive  at  the  time  of  the  trial,  and  out  of  the  State, 
their  depositions  must  lie  taken.  Gervin  v.  J  eredith,  2  Car.  L. 
1!..  635,  (439.)     S.  1'.,  Rartzog  v.  Hubbard,   I  Dev.  and  Hat,,  241. 

;>.  Common  reputation  in  the  family  is  admi  isible  as  evidence 
of  a  marriage  in  that  family;  and  it  declarations 

of  a  member  of  the  family  are  evidence  of  such  common  repu- 
tation; but  such  declarations  must  have  been  mad  before  any 
contest   had  arisen  relative  to  such    marria  . ...  n  v.  Pur- 

nell,  4  Hawki 

4.  Common  reputation  is  the  best  evidence  of  the  state  of  a 
man's  property,  when  it  is  collaterally  quei  tioned.  State  v. 
( 'oefcrewie,  2  Dev.,  63. 

5.  Where  the  question  was  one  of  domicil  at  the  date  of  the 
the  writ,  and  the  defendant  proved  that  tlie  plaintiff,  before  the 
date  el'  the  writ,  had  g  '-'■■  from  one  county  to  another,  and 
wished  the  jury  to  infer  from  this  an  abandonment  of  his  for- 
mer linn)'.  1  Ik;  testimony  ot  a  witness,  who  swears  that  "this 
was  net  regarded  in  his  (the  plaintiff's)  father-in-law's  family, 
where  the  plaintiff  resided,  and  where  the  witness,  a  member  of 
the  family,  also  resided,  as  an  abandonment  of  the  plaintiff's 
{inn  place  df  residence,"  is  admissible.;  tin-  it  does  nut  appear 
thai  the  witnei  8  came  to  his  knowledge  by  the  ex  parte  hearsay 
of  any  of  'lie  members  of  the  family,  but  he  may  have  derived 
itfr  a  ot)  r  cts,  apparent  at  the  time  to  the  family.  Fleming 
v.  Straley,  1  Ired.,  305. 

(I.  Where  to  an  action  of  debt,  on  a  bond  for  one  hundred  dol- 
lars, the  plea  was  that  it  was  given  to  compromise  an  indict- 
ment fur  a.  misdemeanor,  the  ads  and  sayings  of  the  sun  of  the 
plaintiff,  who  was  shown  to  be  an  agent  of  the  plaintiff,  not  in 
the  presence  of  the  plaintiff,  are  inadmissible  in  evidence.  Red* 
man  v.  /'.  '<  rts,  1  Ired.,  471). 

7.  The  declarations  of  the  grandmother  of  one.  who  is  charged 
to  be  a  person  of  color,  that  his  mother  was  the  offspring  of  a 
white  man  and  herself,  are  not  admissible  evidence  upon  that 
question.     States.   Waiters,  3  Ired.,-!-;!."). 

s.  The  testimony  of  a  witness,  who  has  known  a  town  a.  great 
number  of  vears,  may  be  evidence  of  a  common  reputation, 
that  what  was  once  called  the  town  of  Newton  is  now  called  the 
town  of  Wilmington.     Toole  v.  Peterson,  '.•  Ired.,  180. 

9.   Where  the  lessors  of  the  plaintiff  claimed  as  the   heirs  at 


EVIDENCE.— VII.  449 

law  of  one  A.  D.,  who  was  dead ;  it  was  held  that  the  declarations 
of  A.  D.,  that  the  lessors  were  the  children  of  a  married  sister 
deceased,  and  were  her  nearest  living  relations,  were  admissible 
in  evidence  to  prove  the  fact  of  such  relationship.  Moffit  v. 
Witherspoon,  10  Ired.,  185. 

10.  Such  declarations  are  competent  to  prove  marriages  as 
well  as  births.     Ibid. 

11.  The  declarations  of  deceased  members  of  a  family  are 
competent  to  prove  the  time  of  the  birth  of  a  child  belonging  to 
that  family,  although  there  may  be  a  family  register  of  births 
in  existence;  for  the  one  kind  of  evidence  is  of  no  higher  digni- 
ty than  the  other.      Clements  v.  Hunt,  1  Jones,  400. 

12.  The  notes  of  an  attorney,  taken  on  the  trial  of  a  cause, 
may  be  read  on  the  subsequent  trial  of  the  same  cause,  as  evi- 
dence, of  what  a  witness,  since  dead.,  swore  on  the  former  trial, 
provided  the  attorney  swears  that  hisnotesare  correct  and  con- 
tain the  substance  of  allj  the  witness  testified,  although  be  has 
not  now  any  recollection  of  such  evidence  independent  of  his 
notes.     Jonesv.  Ward,  3  Jones,  24. 

13.  Where  a  female  slave  declared  that  she  was  affected  with  a 
prolapsus  uteri,  and  offered  at  the  same  time  to  submit  to  an  exami- 
nation of  her  person,  in  verification  of  her  statement;  it  was  held 
thatproofof  such  offer  was  admissible  as  part  of  tier  declara- 
tion, and  as  tending  to  show  the  truthfulness  of  it.  Wallace  v. 
Mcintosh,  4  Jones,  4;>4. 

14.  A  witness  is  incompetent  to  testify  to  what  a  deceased 
witness  swore  uii  a  former  trial,  unless  he  says  that  he  is  able  to 
state  the  substance  of  <<H  that,  was  testified  by  the  deceased  w  itness. 

Wright  v.  Stowe,  4  Jones,  516. 

15.  The  notes  of  an  attorney  of  the  testimony  of  a  witness, 
taken  on  a  former  trial  of  the  same  cause,  which  he  swears  he 
believes  to  be  correct,  are  admissible,  though  the  attorney  may 
not  fully  remember  the  testimony.  Ashe  v.  /Aii'.cv,'  '.  5  Jones, 
299. 

la.  Whether  reputation,  or  hearsay,  from  a  deceased  person  is 
admissible  to  establish  the  timt  of  a  birth  or  marriage,  quaere. 
Harden  v.  Barrett,  6  Jones,  159. 

17.  Cohabitation,  reputation,  and  a  general  recognition  of  a 
man  and  woman  as  husband  and  wife,  are  competent  evidence  to 
prove  a  marriage  in  all  civil  actions  except  one  for  crim.  con.; 
and  where  a  marriajv  has  l>ei:'»  found,  by  a  jury  on  such  evi- 
dence, it  is  sufficient  in  law  to  defeat  all  right  under  a  second 
marriage  entered  into  during  its  existence,  though  the  second 
marriage  may  have  been  formally  solemnized  and  proved  by  di- 
rect evidence.     Archerv.  Haitkcock,  o'  Jones,  421. 

18.  The  dei -la  rat  ion  of  a  deceased  per- en  is  admissible  to  show 
a  corner  tree,  though  it  was  not  in  view  al  the' time  of  the  declar- 
ation, but  the   position  of  it  was  so   described  as  to  enable  tliQ 

29 


450  EVIDENCE— VII.-VIII. 

witness,  to  whom  the  declaration  was  made,  to  find  it.    Scoggin 
v.  Dairy mple,  7  Jones  46. 

19.  A  certificate  in  writing,  by  a  person  still  living,  stating  a 
payment  of  money,  is  only  hearsay  and  is  not  admissible  as  evi- 
dence of  such  payment.     Carr  v.  Stanley,  7  Jones,  131. 

20.  In  an  action  of  trespass  for  killing  plaintiff's  slave,  where 
it  had  been  proved  that  the  defendant  shot  some  person  in  the 
night  time,  near  a  particular  place,  at  a  certain  hour,  and  the 
plaintiff's  slave  was  found  about  that  time,  near  the  place,  badly 
wounded  with  gun-shot,  it  was  held  competent  to  show  that  there 
was  no  rumor  or  report,  in  the  neighborhood,  that  any  other 
person  had  been  shot  about  that  time  and  near  that  place.  Newh) 
v.  JacksoR,  7  Jones,  351. 

See  (Boundary — Lines  of  another  tract  called  for,  4.)  (Boun- 
dary— Of  a  parol  evidence,  3-7-8-9-13.)  (Evidence — Proceedings 
iu  other  suits,  when  and  how  far  evidence,  14-16-20—28.) 
(Evidence — Admissions,  declarations  and  acts  of  parties  and 
privies,  53-89.) 

VIII.       IN  WHAT  CASES  A  WITNESS  MAY  EXPRESS  AN  OPINION. 

1.  A  witness,  who  has  had  opportunities  of  knowing  and  ob- 
serving a  person  whose  sanity  is  impeached,  may  not  only  depose 
to  tiro  tacts  lie  knows,  but  may  also  give  his  opinion  or  belief  as 
the  sanity  or  insanity  of  the  party.      ( 'lary  v.  ( 'lary,  2  I  red.,  78. 

2.  In  an  action  for  a  breach  of  a  contract  for  the  repairing  a 
vessel,  in  not  making  the  repairs  according  to  the  contract,  after 
the  plaintiff  had  given  evidence  of  the  condition  of  the  vessel 
after  she  was  returned  to  him,  it  was  competent  for  him  to  intro- 
duce witnesses  of  skill  in,  such  matters  to  give  their  opinion 
upon  the  evidence  first  given,  as  to  the  difference  in  the  value 
of  the  vessel  as  thus  repaired,  and  what  her  value  would  have 
been,  if  repaired  according  to  the  contract.  And  it  is  not  neces- 
sary that  such  witnesses  should  be  regular  ship  carpenters,  if  they 
have  occasionally  worked  on  vessels,  owned  and  sailed  in  them 
for  a  long  time,  and  possess  the  requisite  skill  to  enable  them  to 
judge.     Sikes  v.  Paine,  10  Jred.,  280. 

;-l.  rtisan  established  rule  in  the  law  of  evidence,  that,  in  mat- 
ters of  art  and  science,  the  opinions  of  experts  nv<-  evidence 
touching  questions  in  that  particular  art  or  science,  and  it  is 
competent,  to  give  in  evidence  such  opinions,  when  I  lie  professors 
of  the  science  swear  that  tiny  are  able  to  pronounce  thi  m  in  any 
particular  case,  although,  at.  the  same  time,  they  say  that  pre- 
cisely such  a  ciise  had  not  before  fallen  under  their  observation, 
or  under  their  notice  in  the  course  of  their  reading.  The  effect 
of  the  evidence  is,  of  course,  to  be  decided  by  the  jury.  Stale 
v.  Clark,  12  lred.,  151. 

4.   Evidence,   is   admissible,  as  to  the  genuineness  of  a  bank 


EVIDENCE.— VIII.  45I 

note  of  the  opinion  not  only  of  cashiers  and  tellers  of  banks 
bu  also  of  merchants,  brokers,  and  others  who  habitually  receive 
and  pass  the  notes  of  a  bank  for  a  long  course  of  time  so  as  to 
Become  thoroughly  acquainted  with  them,  and  able >  to  jX  bt 
tween  a  true  and  counterfeit  bill,  and  have  that  knowledge 
among -other  things,  tested   by  the  fact,  that  no  hill  pa  sed  by 

[red    111!"         y  rre  nut  §'emiine-     Sta*e v-  Cheek,  IS 

5.  The  general  rale  is,  that  a  witness  must  speak  of  facts  and 
knnot  give  his  opinion  as  derived  from   these' facts      The  o'dy 

;XS;: n zz %rstions  of  ™e  and  of  sau^-  *•*» 

6.  Physicians  alone  are  permitted  to  give  their  opinion  as  to 

Pase'  ? ^de?° e  ",'  Physicians  is  competent  to  How,  thatThe 

Pe^edidnotatthattimeprevailintheneighborh nwhich 

ie  was  sold,  but   did   prevail   i„  the  townfabout  seventTfiye 

8.  Upon  the  question  before  a  jurry,  whether  there  was  not 
n  erasure  upon  a  note,  a  witness  may  properly  say  that  hi 
hid  see  marL  of  an  erasure,  and  that'  £  hES paper 
efore  in  a  better  light,  and  could  then  see  the  erasure  moredTs 
bctly  than    he  could  on  the  trial;  and  the  witness  need  not 

ateh  v.    Waugn,  1  Jones,  483. 

j\Av'i:'"ss<  wh:'  did  not   Profess  to  be  a  chemist,  nor  to  I- 
7  Tin  opinion  on  any  branch  of  the  science,  but  had  only 
^employed  a  few  weeks  in  a  drug  store,  was  held  not  to  be 
fj^d  to  testify  as  an  expert.     v„  ,,  v.  Hoyt,  2  Jones  70 

\h"1V  a  suurveyOT  said,  in  giving  his  testimony^,  that  he 

d,ri]!1""V  'rnerofatractoffand!waP 

id  had  h.ar,'  no  reputntian  as  to  its  locality,  itwas  hetdthltU 

^••""•>l>^  "■  «••■  hi...  1..,riv,.,  „,„„■■,,,,„.,,  Ins  Jin 
Pded  on  a  form  r  survey,  as  to  where  such,  corner  was 
,<-".-  -  i  v.   i,    \      ,  Jon  is,  1:9.  dS- 

J1'  ;V  ,vii":':'s  'vIl°  Vota  Physician,  cannot  be  allowed  to 
>''  -  '  '  .  7hetherasfaye,.from  his  appearance  was  or 
fcnot  m  good  h,  aith.     jfcB  v.  ,]/V,/.,;7.  6  Jones   178 

Ji-  T"'  '"  ■"  t«fwhethertKe  defendant  wi  a  free  ne^ro 
tun  the   meaning  of  the  Revi I  Code,  chapter  iff  ffi 

l,.WM   '"'"    ",  ""    ('""l-lent    for   one.wL   said  that  he 
I  the  owner  and  manager  of  slaves,  and  had  been   so   / 
elve  year,  and  had  giyen  particular  attention  £  thefffSfeS 


452  EVIDENCE.— Vl  I  I.-IX. 

the  intermixture  of  the  African  blood  with  that  of  other  races, 
and  believed  that  he  could  distinguish  between  the  descendants 
of  the  negro  and  white  person,  and  negro  and  Indian,  and 
whether  a  person  had  more  or  less  African  blood  in  him,  to  tes- 
tify as  an  expert  to  that  fact.     State  v.  Jacobs,  6  Jones,  284. 

13.  A  .surveyor  may,  as  an  expert,  express  his  opinion  that 
certain  marks  on  a  tree,  claimed  as  a  corner,  were  proper  marks 
for  a  corner;  but  he  cannot  expn  ss  an  opinion  that  it  was  the 
corner  of  a  particular  grant.     Glegg  v.  Fields,  7  Jones,  37. 

Sec  (Evidence — Subscribing  witness— Proof  of  lmndwriting, 
14.) 

IX.       PROOF    OK    CHARACTER. 

1.  In  assumpsit  by  a  physician  for  his  services,  defendant 
shall  not  call  witnesses  to  prove  the  general  character  of  the 
plaintiff  as  a  physician.     Jeffries  v.  Harris,  3  Hawks,  105. 

'2.  In  an  action  of  trespass  tor  killing  a  slave,  evidence  of  his 
good  character  is  admissible  to  repel  the  presumption  of  he  im- 
proper conduct.     Piercer.  Myriclc,  1  Dev.,  345. 

3.  In  an  action  for  seduction,  Hie  defendant  cannot  prove  that 
his  general  character  is  that  of  a  modest  and  retiring  man;  the 
general  rule,  to  which  this  forms  no  exception,  being,  that 
unless  the  character  of  the  party  be  put  directly  in  issue  by  the 
nature  of  the  proceeding,  evidence  of  his  character  is  not  admis- 
sible.    McRae  v.  Lilly,  1  [red.,  lis. 

4.  In  criminal  charges,  the  prisoner's  character  cannot  be  put 
in  issue  by  the  State,  unless  he  open  the  door  by  giving  testi- 
mony to  it.  But  it  is  not  a  conclusion  ot  law.  that,  from  his 
silence,  the  jury  are  to  believe  that  he  is  a  man  of  bad  character. 
Stater.  O'Neal,  7  [red.,  251. 

5.  Where  in  an  action  for  a  malicious  prosecution  it  becomes  ma- 
terial to  enquire,  whether  a]  arty  was  drunkata  particular  time, 
he  may  give  evidence  by  witnesses,  "ho  have  known  him  long 
and  intimately,  that  he  was  not  addicted  to  drunkenness;  but. 
he  cannot  give  in  evidence  his  reputation  ot'  being  a.  sober  man. 
Beal  v.  Robeson,  8  [red.,  -1(>. 

6.  In  civil  eases  the  general  rule  is,  that  unless  the  character 
of  the  party  be  directly  put  in  issue,  by  the  nature  of  the  pro- 
ceeding, evidence  of  his  character  is  not  admissible.     Ibid. 

7.  In  an  action  on  the  case  for  the  seduction  of  the  plaintiff's 
laughter,  it  is  competent  for  him  to  give  in  evidence,  on  the 
question  of  damages,  the  character  of  his  own  family,  and  also 
the  pecuniary  circumstances  of  the  defendant.  JJfcAiday  v. 
Birkhead,  13  Ired.,  28. 

8.  On  the  trial  of  an  issue  of  devisavit  vel  /"<;/.  in  reply  to 
proof  that  the  propounder  had  used  threats  of  violence  in  pro- 
curing the  execution  of  the   script,  it  teas  held  that  it  was  not 


EVIDENCE.— IX.T-X.  453 

competent  for  him  to  show  that  he  was  of  an  easy,  quiet,  tem- 
per, and  facile  disposition,  and  therefore  not  likely  to  threaten 
violence.     Bottoms  v.  Kent,  3  Junes.  154 

9.  Reports  that  the  plaintiff  swore  to  a  lie,  or  lies,  in  a  distant 
county,  cannot  properly  be  submitted  to  a  jury,  as  elements  from 
which  they  are  to  make  up  their  estimate  of  the  character  of 
the  plaintiff.  The  jury  must  take  the  testimony  of  witnesses, 
who  are  supposed  to  be  able  to  reflect  the  judgment  of  the  pub- 
lic as  to  the  party's  character.     Luther  v.  Sheep,  8  Jones,  356. 

See  (Evidence — In  cases  of  malicious  prosecution  an  1  slander, 
22-21.)  CEvidence — In  criminal  proceedings  and  indictments, 
72-100-110-111-126.) 

X.       TESTIMONY    INADMISSIBLE    FOR    IRRELEVANCY. 

1.  In  case  for  deceit  in  the  s  lie  of  a  runaway  negro,  who  was 
allegi  '1  tu  be  unsound  because  consumptive,  the  defence  was  that 
the  plaintiff  knew  this  before  his  purchase;  held  bhat  tin  do- 
fendanl  could  not  be  allowed  to  show  that  the  plaintiff's  wife 
had  carried  food  to  the  negro,  while  lurking  about  the  plaintiff's 
farm  before  his  purchase.     Hart  v.  Newland,  '■>  Hawks,  122. 

2.  For  the  purpose  of  showing  that  a  loan,  and  aot  a  gift,  to  a 
married  woman  was  intended,  it  is  aot  competent,  because  irrel- 
evant, to  prove  that  loans  and  not  gifts  were  made  to  other 
daughters  on  their  marriage.     Adams  v.  Hays,  2  Ired.,  361. 

3.  The  record  of  the  removal  of  a  cause  from  one  county  to 
another  is  not  revelant  nor  proper  evidence  to  be  submitted  to 
the  jury  on  the  trial  of  the  case,  and  counsel  have  no  righl  to 
draw  any  inference  from  it  in  their  remarks  to  the  jury.  Bum- 
garner  v.  Manney,  I1*  Ired.,  121. 

4.  Where  a  plaintiff  charged  the  defendant  as  his  agent,  with 
having  received  the  hire  of  negroes,  subsequent  to  Nov<  mber 
1840,  and  the  defendant  offered  to  prove  that  another  person 
had,  as  his  agent,  received  the  hires  prior  to  1840,  it  w  ■-  held, 
that  the  evidence  was  irrelevant  and  inadmissible.  Bt  y  v. 
Downey,  Ired..  284. 

5.  Where  evidence  offered  is  irrelevant  in  law,  and  calculated 
tii  mislead  or  prejudice  the  minds  of  wry,  it  is  error  in  the 
court  to  receive  it.     State  v.  Arnold,  13  Ired.,  184. 

(3.  In  a  petition  for  damages  for  an  injury  to  a  saw  mill,  where 
it  was  admitted  that  the  defendant's  dam  below,  on  the  same 
stream,  did  injure  plaintiff's  mill,  it  was  held  to  be  irrelevant  and 
inadmissible  to  prove,  for  the  purpose  of  affecting  the  damages, 
that  if  the  plaintiff  would  erect  a  more  costly  mill  he  could 
make  more,  notwithstanding  the  nuisance  created  by  the  defen- 
dant, than  his  mill  could  make  in  its  present  condition,  without 
such  nuisance.     Johnston  v.  Itudesill,  1  Jones,  510. 

7.  An  inquisition  rinding  that  a  person  was  a  lunatic,  at  its 


454  EVIDENCE.— X. 

date,  is  irrelevant  to  prove  the  alleged  fact  that  he  was  so  six 
months  before  that  time.     Nichols  v.  Pool,  2  Jones,  23. 

8.  It  is  irrelevant  and  improper  for  a  witness,  who  is  not  qual- 
ified to  testify  as  an  expert,  to  say,  upon  a  question  of  the 
forgery  of  a  bond,  that  he  had  seen  the  writing  extracted  by 
chemicals  from  a  piece  of  paper,  which  he  held  in  his  hands. 
Otcy  v.  Hoyt,  2  Jones,  70. 

9.  It  is  not  competent  for  a  creditor,  in  order  to  prove  a  par- 
ticular fraud,  to  show  that  the  debtor  had  made  a  fraudulent 
transfer  of  other  property  to  another  person.  Holmesly  v. 
Hogue,  2  Jones,  391. 

10.  In  an  action  for  the  breach  of  a  covenant  to  teach  an  ap- 
prentice a  trade,  it  is  irrelevant  and,  therefore,  incompetent  for 
the  defendant  to  show  that  he  kept  the  apprentice  at  work  with 
other  apprentices  of  the  same  experience,  and  made  no  distinc- 
tion between  them,  when  no  evidence  is  ottered  to  prove  that 
the  other  apprentices  were  properly  taught.     Bell  v.    Walker,  3 

.Jones,  320. 

11.  The  declarations  of  the  deceased,  that  he  was  afraid  that 
another  person  would  kill  him,  is  inadmissible  for  the  prisoner, 
because  irrelevant.     State  v.  Patrick,  3  Jones,  443. 

12.  Where  evidence  of  facts  not  pertinent  to  the  issue  was  ad- 
mitted, upon  the  assurance  of  the  prosecuting  officer  in  a  crimi- 
nal case  that  he  would  introduce  other  facts  and  circumstances 
to  connect  the  prisoner  with  the  facts  deposed  to,  and  he  failed 
to  do  so,  then  the  evidence  of  those  became  irrelevant  and  ought 
to  have  been  withdrawn  from  the  consideration  of  the  jury. — 
State  v  Freeman,  4.  Jones  5. 

13.  Where  A  sold  a  slave  to  B,  for  which  he  gave  a  bill  of  sale, 
arid  took  from  B  a  bond  for  the  purchase  money,  it  was  held  to 
be  irrelevant,  and  therefore  incompetent,  in  a  suit  by  B  to  re- 
cover the  slave,  to  show  that  the  bond  had  been  surrendered  and 
destroyed.     Houston  v.  Moore,  -1  -Tones,  A_'l'. 

14.  The  fact  that  the  prosecutrix,  on  an  indictment  against  a 
slave  for  attempting  to  ravish  her,  had  made  an  indecent  expo- 
sure to  other  slaves  el'  1  he  same  master,  which,  however,  was  not 
known  to  the  prisoner,  is  inadmissible  as  evidence  for  him,  be- 
cause it  is  irrelevant  to  the  issue.     State  v.  Henry,  5  Jones,  65. 

15.  In  a  case  where  the  question  was  as  to  Ihe  ability  of  the 
debtor,  who  had  some  property,  to  meet  the  debt,  if  lie  had  been 
arrested,  evidence  of  his  being  indebted  to  others  was  held  to 
be  immaterial  and  irrelevant.  Jertkiwsi  v.  Troutman,  7  Jones, 
169. 

16.  In  an  action  for  the  fraudulent  removal  of  a  debtor,  it  was 
held,  that  a  declaration  made  by  the  debtor,  that  "he  intended 
to  get  the  defendant  into  a  scrape,"  was  immaterial  and  irrele- 
vant."    Mqffitt  v.  Burgess,  8  Jones,  342. 


EVIDENCE— XI.-XII.  455 

XI.       PRIVILEGED    OR    CONFIDENTIAL   COMMUNICATIONS. 

1.  A  communication  voluntarily  made  to  a  counsel,  after  he 
has  refused  to  be  employed  by  the  party  making  it.  does  not 
come  within  the  rule  of  confidential  communications,  and  is 
therefore  admissible  in  evidence.  Setzar  v.  Wilson,  4  Ired., 
501. 

2.  Where  an  accomplice  becomes  a  witness  for  the  State,  upon 
an  assurance  that  what  he  discloses  shall  not  be  used  against 
him,  he  may  be  cross-examined  as  to  what  he  communicated  to 
his  counsel  about  the  offence  while  he  was  himself  charged,  be- 
cause by  becoming  a  State's  witness  such  communications  are 
no  longer  protected  as  confidential.  State  v.  Condry,  5  Jones, 
418. 

See  (Evidence — Witnesses,  their  competency  or  incompeten- 
cy, 3b'  ) 

XII.       PAROL    EVIDENCE,    WHEN    ADMISSIBLE    AND    WHEN    NOT. 

1.  A  witness  may  explain  the  condition  of  the  assignment  of 
a  note.     Greenley  v.  Yoi<ng,  1  Hay.,  3  (5.) 

2.  It  may  be  proved  that  a  man  was  in  the  practice  of  taking 
back  his  deeds,  after  he  had  delivered  them,  in  order  that  lie 
might  thus  secure  the  purchase  money;  and  this  may  be  proved 
to  show  that  a  particular  died  delivered  by  him  was  so  deliver- 
ed.    Clark  v..  Arnold,  2  Hay.,  287,  (467.) 

3.  Parol  evidence  cannot  be  received  to  explain  a  written  or- 
der delivered  to  a  third  person,  especially  as  against  that  third 
person.  Commissioners  of  Greene  v.  Holliday,  2  Hay.,  384, 
(584.)  _ 

4.  W  here  the  words  of  a  deed  of  trust  do  not  in  themselves 
impart  that  the  deed  is  to  embrace  future  securityships,  parol 
evidence  shall  not  be  admitted  to  prove  that  the  parties  intend- 
ed the  deed  to  extend  to  such  future  securityships.  Miller -v. 
Lucas,  1  Murph.,  228. 

5.  A  and  B  made  a  written  contract  respecting  a  horse  race, 
pursuant  to  the  act  of  1800,  (since  repealed,)  and  B  and  C  made 
a  by-bet  and  reduced  it  to  writing,  it  teas  held  that  parol  evi- 
dence could  not  be  received  to  prove  that  the  race,  referred  to  in 
the  written  contract  of  by-bet,  Mas  the  race  mentioned  in  the 
written  contract  between  A  and  I!.  Amngionv.  Culpepper,  1 
Murph..  i".»7. 

(i.  Where'  any  thine-  forming  part  of  a  contract  is  left  out  of 
a  writing  by  fraud  or  accident,  or  any  thing  formingno  part  of 
the  contract  is  inserted  by  fraud,  parol  evidence  may  be  received 
to  prove  the  facts.  But  where  nothing  is  admitted  or  inserted 
in  the  writing,  by  fraud,  accident  or  mistake,  parol  evidence 
shall  not  be  received  to  show  that  the  agreement  of  the  parties 


456  EVIDENCE.— XII. 

was  otherwise  than  what  the  writing  sets  forth.     Smith  v.   Wil- 
liams, 1  Murph.,  426. 

7.  Where  a  bill  of  sale,  not  under  seal,  was  given  for  a  slave, 
containing  a  covenant  for  the  title  of  the  slave,  but  none  for 
his  soundness,  the  purchaser  shall  not  be  permitted  to  give  parol 
evidence  of  the«soundness.     Ibid. 

8.  When  it  appears  doubtful  upon  the  face  of  an  instrument, 
whether  it  was  intended  by  the  tin-,  maker  to  operate  as  a  deed 
or  a  will,  parol  evidence  may  be  given  to  show  how  lie  consid- 
ered it.     Robertson  v.  Dunn,  2  Murph.,  133. 

9.  Parol  evidence  may  be  received  to  explain  or  elucidate  a 
written  instrument,  but  not  to  contradict,  vary  or  add  to  it. 
Therefore  a  written  contract,  that  money  due  on  a  note  was  to 
be  paid  when  collected,  cannot  be  varied  ly  parol  proof  that  the 
defendant  promised  to  commence  an  action  within  ten  days 
againsl  the  maker  of  the  note.  Clark  v.  McMillan,  2  Car.  L  E., 
265,  (244. ) 

10.  Parol  evidence  cannot  be  admitted  to  contradict  the  re- 
cord of  a  county  court,  confirming  the  reporl  of  a  jury  laying 
out  a  road.     Oline  v.  Lemon,  2  Car.  L.  R.,  439,  (323.) 

11.  Where  a  deed  conveys  a  specific  number  of  acres,  and  no 
corner  is  named  in  the  deed,  parol  evidence  is  not  admissible  to 
establish  a  line  in  contradiction  to  the  deed,  which  shall  contain 
less  land  than  the  specified  quantity.  Herrings.  Wiggs,^.C 
Term  1,'.,  34,  (474.) 

12.  Where  a  tleed  purports  to  be  governed  by  an  old  line, 
which  is  placed  upon  the  records,  parol  evidence  as  to  the  inten- 
tion of  the  parties,  tending  to  control  the  tleed,  is  inadmissible. 
Ibid. 

13.  If,  at  the  time  of  the  endorsement  of  a  note,  a  special 
agreement  be  entered  into  between  the  parties,  that  the  endorsee 
shall  sue  tlie  maker,  and  endeavor  by  legal  coercion  to  obtain 
the  money  from  him,  and  if  he  fail  therein,  that  then  the  endorser 
shall  be  liable,  parol  evidence  may  be  received  to  prove  this 
special  agreement,  and  the  plaintiff  may  recover  upon  it.  Wright 
v.  Latham,  3  Murph.,  298. 

14.  Parol  evidence  shall  not  be  received  to  contradict  an  aver- 
ment, in  a  deed,  of  the  payment  of  the  purchase  money.  Bracket 
v.  Foscue,  I  Hawks,  64,  S.  P.  Graves  v.  Carter,  2  Hawks,  576, 
Spiersv.  Cl"y,  4  Hawks,  22. 

15.  If  two  persons  endorse  a  note,  in  virtue  of  a  mutual  under- 
standing with  each  other,  to  lend  their  names  for  the  accommo- 
dation of  the  maker,  parol  evidence  is  admissible  to  show  such 
understanding.     Lure  v.   Wall,  1  Hawks,  313. 

lli.  A  person,  being  indebted  in  the  sum  of  $1000,  conveyed 
to  his  creditor  a  house  and  lot  in  satisfaction  of  the  debt,  express- 
ing in  the  deed  the  consideration  to  have  been  $1000,  in  a  suit 
by  the  creditor  for  the  debt,  the  debtor  may  show  by  parol  that 


EVIDENCE.— XII.  457 

the  sum  he  owed  was  the  consideration  of  the  deed,  for  it  dues 
not  contradict  any  averment  in  the  deed  but  is  evidence  of  a  dis- 
tinct fact.     Bobbins  v.  Love,  3  Hawks,  82. 

17.  Where  cue  sold  land,  and  executed  a  deed,  in  which  the 
purchase  money  was  admitted  to  have  been  paid,  but  in  truth  a 
mistake  had  been  committed  in  counting  the  money,  it  nuts  lu-ld 
that  in  assumpsit  to  recover  the  deficiency  the  plaintiff  might 
by  parol  evidence  show  the  mistake  and  that  the  defendant  had 
promised  to  correct  mistakes,   and  that   upon  this  evidence   he 

recover  in  the  action  at  law.     Smith  v.  Amis,  3Hawks,  469. 

18.  Ordinary  receipts  may  be  varied  or  contradicted  by  parol 
evidence,  because  they  donotcontain  evidence  of  contracts ;  hut 
w-hen  in  addition  to  the  acknowledgment  of  (he  receipt  of  money, 
a  condition  is  annexed,  upon  which  alone  a  party  may  become 
liable  to  a  further  payment,  they  aosume  the  nature  of  contracts, 
and  cannot  be  contradicted  or  varied  by  parol  testimony.  Smith 
v.  Brown,  3  Hawks.  580. 

1(J.  Where  a  law  suit  was  pendingas  to  the  title  of  a  vessel,  and 
the  parties  made  a  parol  agreement  to  settle  it,  but  the  plaintiff, 
instead  of  dismissing-  it  took  a  judgment  by  default,  and  there- 
upon was  sued  by  the  defendantfor  breach  of  his  agreement  to 
settle.  U  was  I"'//  that  in  this  latter  suit  either  party  might  show 
by  parol  his  rights  to  the  vessel,  as  they  stood  at  the  time  of  the 
contract  of  settlement,  in  order  to  show  whether  those  rights 
were  taken  into  consideration  in  making  the  settlement.  2'ruet 
v.  Chaplin,  4  Hawks,  17.s. 

20.  Where  a  judgment  and  execution  were  returned  to  the 
justice  by  the  constable,  and  afterwards  both  searched  among 
the  official  papers  of  the  justice  without  being  able  to  find  them, 
it  was  /ire/that  tins  search,  together  with  the  fact  that  the  justice 
and  the  plaintiff  in  the  judgment  had  removed  out  of  the  State, 
entitled  a  person  claiming  under  the  judgment  and  execution  to 
give  parol  evidence  of  their  contracts.  Underwood  v.  Lane,  1 
Bev.,  173. 

21.  Where  a  conveyance  ismade  of  property  to  the  trustees  of 
a  religious  society,  for  purposes  forbidden  by  the  policy  of  the  law, 
in  an  action  brought  in  their  name  to  recover  it  from  a  stranger, 
he  may  show,  by  parol,  the  unlawful  purpose,  to  avoid  the  deed 
And  it  seems  that  evenaparty  might  offer  such  proof;  for,  as 
di  i  ds  conclude  the  parties,  only  when  valid,  they  cannot  exclude 
proof  of  ah  unlawful  purpose  which  avoid  them.  Trustees  v. 
Dickenson,  1  Dev.,  189. 

22.  [Notice  to  produce  papers  in  the  possession  of  the  oppo- 
site party,  in  order  to  admit  a  copy,  or  parol  evidence  of  their 
contents,  is  unnecessary  in  three  cases;  1st,  where  a  duplicate 
original  is  offered.  2nd,  where  the  instrument  to  be  proved 
is  a  notice;  3rd,  where  the  action  is  of  a  kind  to  give  the 
opposite  party  notice  that  he  is  charged  with  the  possession  of 


458  EVIDENCE.— XII. 

the  paper,  as  in  trover  for  a  note.      Faribault  v.  E  ly,  2  Dev., 

between  the  two  lis  Wri,  •  !i  '  %t  *""*  AeW'  1D  an  actl0n 
evidence  and  ™"  '  uV  tho  T"tte?  agreement  wax  competent 
Sr  ml,:  U  S  be,c?nnected  with  that  on  wind,  the  action 
Dev.  535  gH   lj  pai'°]  testl™ny.      Hargrave  v.  Ztatrfitaw,   2 

a  dted^itn  °to  ?W  ^  ft?  defen*«»t  ofRre  f»  f'vid™ce 
iclies  ,„>    .  •    "'  '■,IamhU    subsequently  to  the  bond,   and 

Is  evidence  %™h      ^  T^  th?rein  mentione< l  to  b*  paid. 

,      v1,"" r--'1;1;;" or satisfacti°» <* the  bond,  St i8 

dec  .nit,  t+he,Plamtl1fi  ^0  Prove,  that,  notwithstanding  the 
deed  puported  to  be  made  for  a  valuable  consideration  'none 
was  given  or  contemplated,  but  that  a  gift  of  the  m-onertv  con 
veyed  was  upended.     Johnson  v.  Tayh?, 4  Dev    355  P7 

pei^V  ^"d^B  iva,l  aloud  from  a  written  paper,  any 
and  Bat,334P  W         ltwasread-     ****  v.  ifo/i  Dev. 

narnl  l!  hT<''  "T  ^e  oadoreement  of  a  note,  it  was  agreed  by 
pan, between  the  endorser  and  endorsee,  that  if  tlfe  former 
Z        !f -iUte  t0    he  Iatter  a    !'  ed    for  a  trac1  of  land,  the  latter 

e  1  h,  :;V;,llV;;'''l1tl',V- ',1,':"T  did  aft™d*  execute  a 
«  1  1  t  °  W  which  ^  accepted  by  the  endorsee, 
LlfxS- ,  at  prod  of  those  tacts  was  not  evidence  tending 
to  establish  a  contract  variant  from  that  contained  in  Se  writteta 
2™7b  "was.com  petent  to  support  the  plea  of  "Tccord 
and  satisfaction.       Smitherman  v.  &»t#  3  Dev.  Lid  Bat.,  89 

-\  P^ol  evidence  is  not  admissible  to  vary,  explain  or  con- 
tra.Iicta: ^agreement  m  writing.     Donaldson  v.  Benton,  i  Dev. 

issued ?aTh  eI?e?r  ,";,v1be1!'CCcived  t0  show  when  a  writ 
issued  iheaetol  assembly,  directing  the  clerk  to  .nark  the 
dgnf  : .ssumg  processes  only  directory,  and  does  not  exdude^ 

cX^Tseo^1)718  V-  V""h''i""1"  l  Ired'  309"     (See  *■* 

to  writfno  nile',that.V'here  ?ar*ieB  have  reduced  their  contract 
llT  f'iuaTOl  ?vlde»ce  shall  not  be  introduced  to  alter  or 
Sween^?6  T^  mstr«.  ?PpKe.  only  to  controversies 
between  the  parties  themselves,  and  those  claiming  under  them. 


EVIDEXCE—  XII.  459 

Between  one  of  the  parties  and  a  stranger  the  rule  does  not  ap- 
ply.    Reynolds  v,  Magness,  2  Ired.,  2(5. 

31.  Where  there  has  been  a  trial  on  a  warrant  before  a  jus- 
tice, and  the  entry  made  by  him  may  well  stand  either  for  a 
nonsuit  or  a  judgment  on  the  merits,  parol  testimony  to  show 
whether  the  merits  were  passed  upon  or  not  is  admissible. 
Justice  v.  Justice,  3  Ired.,  58. 

32.  Where  it  appears  that  there  was  a  written  contract,  show- 
ing the  nature  of  the  title  to  certain  personal  property  in  dis- 
pute, the  party  wishing  to  avail  himself  of  that  title  must  pro- 
duce the  written  contract,  or  account  satisfactorily  for  its  non- 
production,  before  he  can  give  parol  evidence  of  it.  Graham  v. 
Hamilton,  3  Ired.,  381. 

33.  Where  a  paper  writing  is  deficient  in  punctuation,  and 
its  sense  may  be  varied  as  the  punctuation  is  one  way  or  anoth- 
er, parol  evidence  may  be  introduced  to  explain  its  meaning. 
Graham  v.  Hamilton,  5  Ired.,  42S. 

34.  When,  as  to  the  extent  of  estates,  or  the  particular  limita- 
tion of  estates,  in  a  deed  or  will,  the  intention  of  the  maker  or 
testator  is  to  be  ascertained,  the  court  must  decide  upon  the 
face  of  the  instrument  itself;  but  when  the  question  is,  whether 
an  instrument  of  writing  is  a  will  or  a  deed,  it  becomes  a  fact 
to  be  proved  by  all  kinds  of  evidence,  by  which,  in  law,  any 
other  fact  may  be  established;  and  the  evidence,  which  arises 
from  the  face  of  the  instrument,  may  be  aided  or  opposed  by  ev- 
idenca  aliunde.     Clayton  v.  Liverman,  7  Ired.,  92. 

35.  Where  A  hired  a  negro  of  1)  and  gave  the  following  sealed 
note,  "On  the  1st  day  of  January,  1848,  1  promise  to  pay  B  one 
hunch  id  and  thirty  dollars,  the  slave  is  hired  on.1  e  terms 
as  other  slaves,  for  tin.'  slave  Evartson,"  it  was  held  that  this 
writing  only  referred  to  the  price  of  the  negro,  and  was  not  a 
memorial  of  any  other  terms  of  the  agreement,  and  that  as  to 
these  latter,  parol  evidence  was  admi  ibli  ;  and  further  that  to 
recover  damages  for  a  breach  of  the  agre<  mi  at  not  contained  in 
the  sealed  note,  an  action  on  the  case,  and  not  an  action  of  cov- 
enant was  the  proper  remedy.     Ttoicfy  v  S  ■  i<<!~  rson,  9  ired..  5. 

36.  Where  a  society  exists,  which  has  its  written  rules  and 
by-laws,  it  is  not  competent  to  show  by  parol  testimony,  that 
there  are  other  rules  and  usages,  independent  of  those  contained 
in  such  vvritten  rules  aud  by-laws.  Holmes  v.  Johnson,  11 
Ired.,  55. 

:S7.  Where,  before  a  hiring  commenced,  a  paper  writing  was 
read  purporting  to  contain  the  terms  of  the  hiring;  it  was  held 
to  be  competent  for  the  defendant  to  prove  by  parol  testimony, 
that,  also  before  the  hiring  commenced,  the  crier  announced  in 
an  audible  voice  other  terms ;  as  the  hirer  or  his  agent  had  a  right 
to  make  such  alteration.     Satterfield  v.  Smith,  11  Ired.,  (50. 

38.  Parol  evidence  may  be  admitted  to  show  a  custom  or  usage 


460  EVIDENCE.— XII. 

of  a  place,  where  a  contract  is  entered  into,  for  the  purpose  of 
annexing  incidents  to,  and  explaining  the  meaning  of,  terms 
used  in  it.  But  before  the  incidents  can  lie  annexed,  the  con- 
tract itself,  as  made,  must  he  proved.  The  incident  cannot  he 
used  to  establish  the  contract,  nor  can  it  be  inconsistent  with  the 
terms  of  the  contract.     Moore  v.  Eason,  11  Ired.,  a(i<S. 

39.  A  made  a  parol  contract  to  purchase  of  B  a  tract  of  land,  at 
an  agreed  price,  and  B  further  agreed  that  lie  would  put  certain 
repairs  on  tin.,  premises  before  the  first  of  January  ensuing; 
Afterwards,  and  before  that  day,  B  delivered  to  A  the  deed  tor 
the  land,  renewing  the  promise  to  make  the  repairs.  The  repairs 
not  being  made,  A  brought  assumpsit  to  recover  damages  for 
the  breach  of  the  promise,  and  on  the  trial  offered  to  prove  the 
agreement  by  parol  evidence;  and  (7  was  held  that  the  proof  was 
aamissible,  because  the  deed  was  an  execution  of  one  part  of  the 
agreement,  the  oilier  part  having  been  left  in  parol;  so  that  the 
proof  offered  was  not  to  add  to,  alter  or  explain  the  deed.  Man- 
ning v.  Jones,  Busb.,  368, 

40.  Parol  evidence  is  admissible  to  prove  the  consideration  of  a 
guaranty.     Nichols  v.  Bell,  1  Jones,  32. 

41.  The  acceptance  of  a  charter  and  the  organization  of  a  cor- 
porate body,  under  such  charter,  may  be  proved  by  the  parol 
testimony  of  a  witness,  who  saw  the  alleged  corporators  in  the 
use  and  exi  rci  e  of  the  franchises  and  powers  conferred  by  the 
act  of  incorporat  ion.  Wilmin  item  and  Manchester  Railroad  <  '0m? 
pany  v.  Saunders,  3  .tones,  126. 

42.  Where  the  terms  of  the  hiring  of  a  slave  were  proclaimed 
at  the  time  of  hiring,  one  of  which  was  that  lie  was  not  to  he 
removed  from  the  county,  it  was  held  that  a  bond  given  for  the 
price,  and  containing  stipulations  as  to  the  treatment  and  manage- 
ment of  the  slave,  did  not  prevent  the  introduction  of  parol  evi- 
dence, to  pro\e  iSie  contract  as  to  the  removal  of  the  slave  from 
county.     Daughtry  v.  Booths,  4  .tones.  87. 

43.  Parol  evidence  is  not  only  admissible,  but  is  necessary,  to 
show  what  matters  were  acted  upon  by  arbitrators  in  a  case 
submitted  to  them.     Brown  v.  Broion,  4  Jones,  128. 

44.  Where  goods  were  ordered  by  letter,  and  were  received 
and  used  by  the  purchaser,  and  no  question  was  made  as  to  the 
terms  of  the  purchase,  it  was  held  that  these  facts  might  be 
proved  by  parol,  without  the  production  of  the  letter,  or  account- 
ing for  its  absence.     Harlan  v.  Smith,  4  Jones,  270. 

45.  Where  a  person  made  a  written  subscription  to  take  stock 
in  a  railroad  company,  under  the  authority  of  certain  com- 
missioners, it  is  not  competent  for  him  to  prove  by  parol,  that 
he  made  his  subscription  on  a  condition,  as  to  the  particular 
location  of  a  part  of  the  road,  which  had  not  been  complied 
with  by  the  company.  North  Carolina  Railroad  Company  v. 
Leach,  4  Jones,  340. 


EVIDENCE.— XII.  461 

41).  Where  a  writing,  under  seal,  was  intended  to  evidence  the 
sale  of  a  personal  chattel,  to  wit,  a  jackass,  and  was  inoperative 
for  the  want  of  an  essential  part,  it  icas  held  that  an  action  of 
assumpsit  would  lie  on  a  parol  contract  made  at  the  time  of  the 
execution  of  the  instrument,  and  that  parol  evidence  of  such 
contract  was  admissible,  independent  of  the  terms  contained  in 
sueii  ineffectual  writing.     Kent  v.  Edmonston,  4  Jones,  529. 

47.  Where  the  terms  of  a  contract,  for  the  sale  and  purchase 
of  a  cotton  crop,  were  all  reduced  to  writing  and  signed  by  the 
buyer, except  as  to  tin-  time  oi  delivery,  it  washeldto  be  competent 
to  prove  by  parol,  that,  at  the  time  when  the  written  contract  was 
entered  into,  a  day  was  fixed  for  the  delivery  of  the  cotton. 
Join  -ton  v.  McRary,  5  Jones,  369. 

48.  Where  a  cross  fence  was  called  for  in  a  will,  and  it  appeared 
that  there  were  two  cross  lei  ices  to  which  the  call  would  apply. 
it  was  held  to  be  a  case  of  latent  ambiguity,  which  might  be  ex- 
plained by  parol  testimony  toshowwhich  cross  fence  was  meant. 
M<  t'ullx.  Gillespie,  6  Jones,  533. 

4!>.  Receipts  for  money,  which  contain  no  evidence  of  a  con- 
tract between  the  parties,  are  liable  to  be  explained  or  altered 
by  parol  testimony;  but  it  is  otherwise  where  they  are  relied  on 
as  evidence  of,  a  contract.     Brown  v.  Brooks,  7  Jones,  93. 

50.  Where  an  executor  delivered  certain  slaves  to  the  lega- 
tees, under  a  power  to  do  so  conferred  by  the  will  of  his  testator, 
and  afterwards  a  written  memorial  was  made  and  signed  by  the 
legatees,  as  to  the  division  made  among  them  of  certain  of  the 
slaves,  it  teas  held,  that  such  writing  did  not  prevent  proof  by 
parol  of  the  division  by  the  executor  of  other  slaves,  so  as  there- 
by to  explain  the  whole'  transaction.  Griffith  v.  Boseborovgh,  7 
Jones.  520. 

51.  Parol  evidence  is  not  admissible  to  impeach  an  entry  of  a 
justice,  allowing  ten  days  tor  a  party  to  give  security  for  ap- 
peal from  his  judgment,  by  showing  that  the  entry  was  made, 
without  requiring  from  the  party  an  affidavit  that  he  was  then 
unprepared  with  security.     Longv.  Wearer,  8  Jones,  626. 

52.  Where  a  receipt  was  given,  on  the  delivery  of  rice  at  a  mill, 
setting  forth  the  quantity  and  the  terms  of  the  deposit;  it  was 
held,  in  an  action  for  the  loss  of  the  rice  by  lire,  that  the  plain- 

ild  not  resort  to  parol  proof  to  show-  the  quantity,  without 
ofhis  inability  to  produce  the   receipl  on  account  of  its 
loss  or  destruction.     Ashe  v.  DeRosset,  8  Jones,  240, 

See  (Arbitration  and  Award — When  an  award  is  to  he  sus- 
tained or  set  aside.  L'li. )  ( Boundary — <  If  parol  evidence.)  (( !on- 
etables — <  >f  their  elect  ion  or  appointment,  8-12.)  (  Deed-  1)  ieds 
intrust,  3.)  (Devise — Construction,  who  can  take,  4.)  (De- 
vise— Construction,  as  to  what  it  includes,  20-25-28.)  (  Execu- 
tion— Piuchaser  at  an  execution  sale,  60.)  (Forcible  Trespass, 
6.)     (Fraud — Conveyances,   agreements,  &c,    fraudulent  as   to 


462  EVIDENCE.— XII.-XIII. 

creditors,  40-41.)  (Guarantee,  32.)  (Justices  of  the  peace — 
Of  their  jurisdiction,  judgment  and  execution,  56.)  (Legacy — 
Construction,  what  passes  and  who  takes,  12-13-19-27-34-37- 
59.)     (Pardon,  6.)     (Record,  6.)     (Registration,  17-18.) 

XIII.       ADMISSIONS,    DECLARATIONS    AND    ACTS    OF    PARTIES,    TRIVIES    AND 
OTHERS. 

1.  The  declarations  of  the  counsel  of  the  adverse  party  can- 
not be  given  in  evidence.     K<<itj/<n  v.  Kennedy,  Mar.,  37,  (26.) 

2.  The  declarations  of  a  father,  that  his  conveyance  to  his 
child  was  fraudulent,  made  subsequent  to  the  conveyance,  are 
not  admissible  against  the  child.  Arnold*?.  Bell,  1  Hay.,  396, 
(456,)  S.  P.  Gray  v.  Harrison,  2  Hay.,  292,  (477.)  Eelbank  v. 
Burt,  Ibid,  330,  (501.) 

3.  A  confession  shall  be  taken  altogether;  but  if  there  be  cir- 
cumstances mentioned  in  the  confession  which,  when  exam- 
ined into,  disprove  the  mailer  alledged  in  discharge,  or  where 
that  matter  can  be  disproved,  the  jury  are  to  reject  and  go 
upon  the  other  parts  of  the  confession  only.  Barnes  v.  Kelly,  2 
Hay,  45.  (203.) 

4.  Neither  a  lather  nor  Lis  wife  shall  be  heard  to  impeach  a 
deed  tor  a  slave,  by  proving  that  he  had  previously  given  him 
by  parol  to  his  child.     Anonymous,  2  Hay.,  127,  (290.) 

5.  The  after  declarations  of  a  party  shall  not  be  offered  for 
himself,  to  explain  his  former  transactions.  Bobinson  v.  Devane, 
2  Hay,  154,  (333.) 

6.  When  an  account  was  presented  and  defendant  said,  "if 
witness  and  the  alleged  creditor  will  prove  it,  J  will  allow  it," 
and  they  afterwards  swore  to  it  before  a  justice  of  the  peace, 
//(/(/that  this  evidence  was  sufficient  to  establish  the  account. 
Hanks  v.  Hanks,  2  Hay.,  22.1,  (395.) 

7.  The  confession  of  one,  under  whom  defendant  claimed,  shall 
not  be  received  to  affect  the  purchaser  under  him;  quai'i  l>v  Hav- 
wood.      Clark  v.  Arnold.,  2  Hay.,  287,  (467.) 

8.  Declarations  of  one,  who  had  sold  lands,  cannot  he  given 
in  evidence  to  impeach  the  sale.  Gray  v.  Harrison,  2  Hay., 
292,  (477.) 

9.  A  master  of  ;i  vessel  cannot  give  his  own  protest  in  evi- 
dence for  himself.  Cunningham  v.  Builer,  2  Hay.,  392,  (588,) 
S.  P.  Miller  v.  Ireland,  'ibid,  215,  (389,)  S.  C.  Tay.,  308, 
(134.) 

10.  The  declarations  of  a  person  now  dead,  made  when  he 
was  owner  of  the  land,  respecting  a  corner,  are  not  evidence  in 
favor  of  a  person  claiming  under  him.  Smithv.  Walker,  1  Car., 
L.  R,  514.  (127.) 

11.  In  an  action  by  a  father  for  the  seduction  of  his  daughter, 
lie  may  give  in  evidence  the  dying  declaration  of  the  daughter. 


EVIDENCE.— XIII.  463 

jharging  the  defendant  with  having  been  her  seducer.  McFar- 
and  v.  Shaw,  2  Car.,  L.  E.,  102,  (200.)  (Overruled,  by  Barfidd 
f.  Britt,  2  Jones,  41.) 

12.  Where  the  acts  of  a  person  may  be  given  in  evidence  for 
jam,  his  declarations  in  relation  to  those  acts  are  also  proper 
Evidence.  Hence,  it  was  Jidd,  that  where  a  person  was  seen 
Minting  the  road  with  his  friends  and  servants,  his  declaration 
hat  he  was  limiting  for  lost  notes,  was  evidence  of  the  loss  of 
he  notes.     Shenck  v.  Hutcheson,  2  Car.,  L.  R,  432,  (315.) 

13.  The  declarations  of  a  person  are  evidence  against  him,  and 
dl  claiming  under  him  by  a  subsequent  title;  and  he  cannot 
letter  his  title  by  transferring  it  to  another,  or  thereby  affect 
;he  rights  of  those  who  have  an  interest  in  his  declarations. 
Hence,  in  an  action  for  a  slave,  the  plaintiff  claimed  under  a  bill 
>f  sale,  dated  15th  December,  and  defendant  under  one  from 
he  same  person,  dated  5th  Dec,  the  plaintiff,  alleging  that  he 
prchased  I  >  fori  the  5th,  was  permitted  to  prove  declarations  of 
[he  vendor,  made  between  the  5th  and  15th  Dec,  that  by  an 
igreement  between  the  vendor  and  himself,  they  were  to  meet 
pout  the  15th,  when  plaintiff  was  to  secure  the  purchase 
iionev,  and  the  vendor  was  to  make  a  title.  Guy  v  Hall  3 
tturph.,150. 

14.  Admissions,  made  to  the  sheriff  by  a  person,  that  lie  had 
io  title  to  a  slave  on  which  the  sheriff  had  levied  an  execution, 
ire  not  eA'idence  of  the  want  of  title  in  the  person 
Baking  brd  v.  Lucas,  2  Hawks,  214. 

15.  When  the  plaintifl  1  a  writing  signed  by  the 
defendant,  acknowledging  that  the  title  was  in  the  plaintiff  and 
Showing  also  that  the  defendant  had  been  in  possession  more 
ban  seven  years  under  color  of  title;  it  was  held,  that  the  paper 
fas  made  evid  mce  for  the  defendant  by  its  introduction  by  the 
Baintiff,  and  that,  as  his  acknowledgment  was  not  made  until 
Wter  hi  i  had  repened  into  title,  he  was  not  affected 
>y  it;  it  would  have  been  othi  rwise  if  mi  University 
I  //,■.->  Hawks,  370. 

16.  V\  ere  a  lefendant  admitted  the  justice  of  an  account,  an 
fetion  on  which  w  mid  h  □  iarred  by  the  stat  ite  of  limi- 
fetions,  but  at  t'  produced  an  accounl  of  equal 
imouot  against  the  plaintiff,  wine!,  he  alleged  was  correct,  it 
\as   h                 all    that  the    defendant    said    must   be    taken 

to  the  jury,  to  believe  such  partsas  they  might 
fcink  proper.     Ja  vis  v.  Farrall,  2  Hawks,  570. 

17.  In  an  action  for  freedom,  defendant  gave  in  evidence  a 
pcord  to  show  plaintiff  to  be  a.  slave,  from  which  it  appeared 
Bat  the  procei  dings  of  an  inferior  court  on  a  haleas  a  rj  us,  pro- 
fcuncing  him  (ree,  had  been  reversed  on  the  ground  oi  want  oi 

h  court:  and  to rebutanyunfavorable  inference 
I  to  give  in  evi< 


464  EVIDENCE.— XIII. 

the  declarations  of  one,  not  a  party  to  the  record,  but  who  had 
once  had  possession  of,  and  claimed  title  to,  the  plaintiff,  under 
the  party  to  the  record  of  reversal,  at  the  time  the  declarations 
were  made.     Free  Jnckx.   Woodruff,  3  Hawks,  106. 

18.  The  return  of  an  inventory  by  an  administrator  is  evidence 
of  the  amount  of  assets  therein  .stated,  against  both  him  and  his 
sureties.     Armistead  v.  Harramond,  4  Hawks,  339. 

19.  When  a  person  had  said  that  he  hail  given  a  certain  negro 
to  another,  his  will  of  that  date  was  admitted  to  explain  his 
declaration.     Moj-isey  v.  Bunting,  1  Dev.,  3. 

20.  A  survey,  though  ancient,  made  by  the  direction  of  the 
owner  i  if  lands  for  his  own  convenience,  is  not  admissible  evi- 
dence  for  him,  or  for  those  claiming  under  him.  Jones  v.  Hug- 
gins,  1  Dev.,  223. 

21.  The  acts  and  declarations  of  others  are  not  admissible  in 
evidence  against  any  one,  as  affording  a  presumption  against 
him,  in  the  way  of  admission  or  otherwise;  therefore,  where 
the  question  was,  whether  A,  had  refused  to  guaranty  a  bank 
note  t"  B,  it  was  held-,  that  the  refusal  of  A  to  guaranty  the 
same  note  on  offering  it  to  C,  immediately  before  passing  it  to 
B,  but  not  in  his  presence,  was  inadmissible.  Anderson  v.  Raw- 
lins, 1  Dev.,  445. 

22.  The  declaration  of  a  creditor,  or  of  his  general  agent,  that 
his  debt  is  discharge,.!,  is  prima  facie  evidence  of  payment. 
State  Haul;  v.   Wilson,  1  Dev.,  484. 

23.  A  lease  thirty  years  old  is  prima  facie  evidence  of  the 
time  the  lessee  took  possession,  and  is  admissible  although 
produced  by  the  lessor  in  support  of  his  title,  especially  when 
it  was  admitted  that  the  lessee  took  possession  about  the  time 
of  its  date.     Blair  v.  MiUer,  2  Dev.,  407. 

24.  Where  there  is  no  allegation  of  fraud,  the  transfer  of  prop- 
erly in  the  hands  of  a  consignee  may  be  presumed  from  letters 
of  the  owner  and  vendee  to  the  consignee,  directing  him  how 
to  hold  the  property,  without  an  actual  delivery,  and  without 
proof  of  a  consideration.     Cox  v.  Gordon,  2  Dev.,  522. 

2">.  The  declarations  of  a  deceased  tenant,  made  during  his 
tenancy,  as  to  the  particular  person  under  whom  he  lie],!,  are 
evidence  to  show  the  tenancy,  in  controversies  between  Ins  land- 
lord and  others.  But  this  rule  has  its  foundation  in  necessity, 
and  dues  not  apply  where  the  tenant  is  alive,  or  where  the  de- 
clarations were  made  after  the  tenancy  had  ceased.  Picket  v. 
Picket,  3  Dev.,  6. 

26.  A  note  given  for  the  payment  of  rent,  and  proved  by  the 
subscribing  witness  to  have  been  executed  thirty  years  ante 
lit  motam,  is  competent  evidence  to  prove  the  date  of  the  lessee's 
possession.  But  it  is  otherwise  as  to  a  recent  admission  of  the 
lessee.     Blair  v.  Miller,  3  Dev.,  261. 

27.  In  no  case  is  the  declaration  of  the  grantor  evidence  for 


EVIDENCE.—  XI II.  4fiii 

one  claiming  under  him  ;  neither  arc  the  calls  of  a  grant  to  him, 
though  of  ancient  date,  evidence  for  those  claiming  under  him, 
8asser  v.  Herring,  3  Dew,  340. 

•28.  A  deed  is  evidence  of  its  own  existence,  and,  of  course, 
of  every  thing  which  necessarily  results  from  its  existence, 
against  all  the  world:  but  of  the  truth  of  the  matters  recited, 
acknowledged  or  declared  therein,  it  is  evidence  onh  against 
pdrties  and  their  privies.     daytvettv.  McGimpsey,  4  Dev..  89. 

29  When  a  defendant  gives  in  evidence  part  of  a  transaction 
in  his  defence,  he  cannot  complain  if  the  court  permits  the  plain- 
tiff to  show  the  whole,  whether  the  transaction  be  strictly  rele- 
vant or  not.     Gabaness  v.  Martin,  A  Dev.,  L'06. 

30.  Where  a  common  design  is  proved  as  to  several  persons,  the 
act  of  one  in  the  execution  of  it  is  the  acl  of  ill,  and  so  is  his 
declaration  accompanying  and  explaining  his  act.      Ibid. 

31.  The  recital  of  a  former,  in  a  subsequen  deed,  is  evidence 
of  the  existence  of  the  former  deed,  against  a  party  to  the  latter, 
an,d  all  claiming  under  him,  but  not  against  a  stranger.  But 
vAeu  the  admission  contained  in  the  recital  is  relied  on  by  a 
stranger,  for  a  fact  operating  in  his  favor,  and  there  are  also 
other  la.-ts  disclosed  operating  against  him.  the  recital  must  be 
taken  altogether.     Hoyatt  v.  Phifer,  4-  Dev.,  2T.'>. 

32.  In  a  suit  brought  by  a  sheriff  against  his  collector,  for 
arrearages  of  taxes,  a  settlement  between  the  sheriff  and  the 
accounting  officer  of  the 'county  is  not  evidence  for  him.  Ba- 
lenger  v.  Allen,  i  Dev.,  358. 

33.  Whenever  a  conversation  between  two  persons  is  proper 
evidence  in  an  action  against  ethers,  it  may  be  proved  by  either 
or  both  of  the  parties,  between  whom  if  took  place;  as  where  A 
communicated  to  Ba  statement  made  to  him  by  < '.  and  upon  his 
examination  could  not  recollect  its  substance,  C  is  a  competent 
witness  to  prove  it.      Grei  te  v.  Cawthorne,  4  I  lev..  409. 

31.  In  an  action  for  an  assault  and  battery,  all  the  eireum* 
stances  accompanying  the  transaction  are  admissible  in  mitiga- 
tion of  damages;  but  it  is  otherwise  of  words  spoken  by  either 
party  at  a  different  time.     Ibid. 

.'I").  A  conveyance  by  a  stranger  to  the  defendant,  indemnify- 
ing him  against  loss  by  reason  of  the  action,  is  admissible  against 
him,  esj.eei,aliy  if  it  recite  facts  material  to  the  issue,  being  sim- 
ilar to  a  declaration  made  in  his  presence,  and  not  contradicted 
by  him.     Foster  v.  Frost,  1  Dev.  424. 

36.  The  declarations  of  a  party  must  be  taken  altogether,  as 
well  those  to  dischage  as  those  to  charge  him;  and  where  a 
person,  to  whom  an  account  had  he-en  presented,  did  not  object 
to  any  of  the  items,  but  only  contended  for  further  credits,  what 
lie  says  must  be  submitted  to  the  jury,  along  with  the  evidence 
of  his  admissions,  arising  from  his  silence  as  to  the  items.  Walker 
v.  Fentrt  ss,  1  Dev.  and  Bat,  17. 
30 


466  EVIDENCE.— XIII. 

37.  In  questions  of  boundary,  a  plat  or  map  of  an  adjoining 
tract  of  land,  made  at  the  instance  of  the  owner  is  evidence,  as 
the  act  of  the  owner,  against  him  and  all  persons  claiming  the 
same  land  under  him ;  though  it  is  not  conclusive  and  may  be 
explained.      Webbv.  Hall,  1  Bev.  and  BaJL,  278. 

38.  Where  it  is  to  be  inferred  from  facts  before  proved,  that 
the  wife  is  acting  as  the  agent  of  her  husbands,  evidence  of  her 
acts  or  declarations  is  admissible  against  liiin.  Torrence  v.  <lin- 
Mm,  1  Dev.  and  Bat,  '284. 

39.  When  a  fraudulent  attempl  to  prevent  competition  at  a 
sale  is  alleged  against  a  party,  he  may,  in  answer  to  evidence  oi 
such  allegation,  show  thai  lie  requested  several  persons  to  attend 
the  rale  and  hid.  as  in  such  ease  his  declarations  became  a  part 
Of  the'  res  gestae.     Jones  v.  Young,  1  Dev.  and  Bat.,  352. 

40.  II',  in  answer  to  the  prima,  facie  evidence  of  fraud,  arising 
from  the  possession  retained  by  a  debtor  after  a  conveyance  of 
his  slaves,  his  assignee  produces  proof  tending  to  show  that  the 
debtor's  possession  was  bona  fide,  as  his  bailee  or  agent,  the  cred- 
itor may  give  in  evidence,  to  rebui  such  proof,  the  acts  and  de- 
clarations of  the  debtor,  showing  that  he  claimed  the  slaves  as 
his  own  after  the  conveyance.  Askew  v.  Reynolds,  1  Dev.  an, 
Bat.,  367. 

11.  Generally  the  acts  and  declarations  of  a  grantor,  after  Wis 
conveyance,  cannot  he  received  in  evidence  against  his  grantee. 
But  where  the  grantor  remains  in  possession  after  his  grant,  his 
acts  and  declarations,  as  to  his  possession,  will  he  admitted,  upon 
the  principle  that  permits  declarations  of  a  trader,  at  the  time 
of  leaving  his  residence,  to  he  admitted  as  evidence  oi'  the  pur- 
pose of  his  departure;  and  that,  on  a  question  of  adverse  pos- 
session, icc<  ivesthe  acts  and  declarations  of  the  tenant  to  show 
the  nature  of  his  possession.     Ibid. 

-12.  Where  a  person,  alleging  himself  to  he  theagent  of  anoth- 
er, sold  a,  note  payable  to  his  principal,  for  the  benefit  of  his 
principal,  what  he  said  to  the  purchaser  at  the  time  of  the  sale, 
as  to  tie-  note  belonging  to  his  principal,  and  his  being  merely 
an  agent,  is  admissible.     Ibid. 

4">.  The  acts  ami  declarations  of  a  slave  apprentice  are  evidence 
on  the  part  of  the  master,  in  an  action  by  the  owner,  to  show 
the  temper  and  disposition  of  the  apprentice.  Clancy  ~v.  Over- 
man, 1  Dev.  and  Hat.,  402. 

44.  Where  a  son.  to  whom  the  father  had  conveyed  a.  slave 
by  deed  of  gift,  but  retained  the  po  session  by  permission  of  the 
son.  was  allegi  .1  to  have  stood  by  while  his  father  was  making 
another  voluntary  disposition  of  his  property  by  deed,  among' 
his  children,  and  to  have  fraudulently  concealed  or  misrepre- 
sented his  title,  it  was  held,  that  a  private  conversation,  which 
occurred  between  the  son  and  father,  just  before  the  execution 
of  the  latter  t\vft\,  in  which  the  father  assured    the  son,  that    by 


EVIDENCE.— XIII.  467 

becoming  a  party  to  it  his  fight  under  the  deed  of  gift  would 
not  be  prejudiced,  was  admissible  to  show  that  the  sod  himseU 
was  misled;  and  that  it  was  admissible,  also,  to  prove  how  the 
father  held  the  slave.     Jo  es  v.  Sasser,  1  Dev.  and  Bat.,  452. 

4.").  A  memorandum  signed  by  a  deputy  sheriff,  setting  forth 
that  he  had,  at.  the  request  of  the  sheriff,  sold  a  certain  tract  of 
laud  ar  a  particular  time,  upon  a  certain  execution,  is  not  admis- 
sible as  evidence  of  the  sale,  nor  of  any  other  fact,  unless  he  is 
dead.  Hat  upon  a  question  whether  the  sheriff's  deed,  purport- 
in--  to  lie  executed  in  pursuance  of  such  sale,  was  fraudulent,  it 
may  be  admitted,  for  the  purpose  of  showing  merely  upon  what 
information  the  sheriff  acted  in  executing  a  deed  for  land,  which, 
he  had  not  himself  sold.  Dobson  v.  Murphy,  1  Dev.  and  Bat.. 
586. 

4(1.  To  authorize  the  admission  in  evidence  of  a  paper,  pur- 
porting to  contain  the  substance  of  a  letter  sent  to  the  plaintiff; 
it  was  held  to  be  sufficient,  after  a  notice  to  produce  the  original, 
to  prove  that  at  a  particular  time,  a  letter  written  to  be  sent  to  the 
plaintiff  an. I  the  same  in  substance  with. the  paper  then  off  re  1 
was  seen  and  read  by  one  witness,  though  he  .lid  not  see  it 
sealed  and  delivered  to  tin'  messenger,  and  that  another  witness, 
about  the  same  tine.',  carried  a  letter  to  the  plaintiff  from  whom 
he  received  another  letter,  which  the  plaintiff  told  him  was  in 
answer  to  the  one  he  had  brought.  Overman  v.  Clermnons,  'J 
Dev.  and  Bat.,  L85. 

47.  A  letter  se.it  by  one  of  the  parties  cannot  be  given  in 
evidence  for  him.  to  pi-  >ve  thefactd  stated  in  it,  but  if  the  party, 
to  whom  it  is  addressed,  write  an  answer  to  it,  such  answer  can 
be  read  against  him;  and  tin.'  letter  must  also  be  admissible  t 
explain  the  answer.  The  letter  and  answer  form,  together,  a 
written  conversation.     Ibid. 

Is.    A  marriage  settlement,  in   which  the  plaintiff  was  a  trus- 
tee for  a    woman,  may  be  given   in  evidence  to  show  the  plain 
tilt's  influence   with  her,  where  evidence  of  such  influence  is 
admissible;   but    it  is  very  slight   evidence,  and  can  be  used   for 
that  purpose  only.      ////'./. 

49.  One  party  cannol  give  in  evidence  a  conversation  between 
himself  and  a  third  person,  in  the  absence  of  the  other  party, 
for,  as  to  what  the  party  himself  said,  it  was  only  his  own  decla- 
ration; and  a  to  what  the  third  person  said,  it  was  not  on  oath, 
and  the   opposite   party  had   no  opportunity    to  examine  him. 

,  v.     (cN(  i'.  -  I  >  v.  and  Bat,  2  i  '.. 

50.  A  claim  to  land,  withoul  possession,  does  not  raise  the 
presumption  of  a  grant.  It  is  also  incompetent  to  show  a  mis- 
take in  the  d  ascription  of  a  deed.  In  both  cases,  it  is  nothing 
more  than  the  party's  own  declaration,  which,  unsustained  by 
accompanying  acts,  is  not  evidence  for  him,  nor  for  any  person 


468  EVIDENCE.-— XIII, 

setting-  up  a  derivative  title  under  him.     Danoy  v.  Sugg,  2  Dev. 
and  Bat.,  515. 

51.  In  an  action  of  trespass  and  imprisonmenl  for  an  unlaw- 
ful arrest,  it  is  admissible  to  prove  that  the  plaintiff  paid  the 
defendant  a  certain  sum  of  money,  on  account  of  the  transac- 
tion for  which  the  arrest  was  made,  in  order  to  show  the  animus 
which  influenced  the  proceeding.  Mead  v.  Young,  2  Dev.  and 
Bat.,  521. 

52.  In  an  action  by  a  negro,  to  try  his  right  to  freedom,  if 
evidence  of  his  being  reputed  a  freeman  is  offered,  it  is  admissi- 
ble to  show,  in  reply,  arts  of  ownership  inconsistent  with  such 
reputation.     Sainpson  v.  Burgwyn,  '■>  Dev.  ami  Hat..  28. 

5;]  In  questions  of  pedigree,  declarations  of  Seceased  persons, 
to  ho  admissible,  must  he  derived  from  those  who  are  connected 
witli  tin-  family.     Hayicood  v.  Barnett,  '■>  Dev.  ami  Hat.,  hi. 

54  A  man's  previous  declarations  maybe  received,  though  they 
are  but  slight  evidence, to  show  tin'  extent  and  true  character  of 
the  dealings  between  him  and  another  person ;  and  they  will  lie 
evidence  against  one  claiming  under  him  by  a  cotemporaneous 
or  subsequent  contract.     Mayv.Gt  itry,  !  Dev.  and  Bat,  117. 

,r>.">.  The  affidavit  of  a  party,  made  to  obtain  a  certiorari,  may 
ho  used  against  him  to  prove  any  facts,  which  are  of  a  character 
to  ho  proved  by  mere  admissions  or  representations.  But  tin  ■ad- 
missions in  such  affidavit  will  not  be  sufficient  evidence  against 
the  ]>arty  making  them,  to  supersede  the  necessity  for  the  other 
party's  producing  matters  of  record  or  a  deed,  under  which  he 
claims.     Musliatt  v.  Moore,  4  Dev.  and  Bat.,  124. 

56.  The  declarations  of  a  party,  connected  with  his  conduct. 
the  next  day  alter  the  execution  of  a  deed,  are  admissible  in 
evidence,  not  for  the  purpose  oi  establishing  the  truth  of  the 
things  declared,  but  to  show  from  them  that  the  party  was  (hen 
insane,  in  order  thai  the  jury  maj  thence  infer,  if  they  should 
think  such  inference  fair  and  proper,  that  he  was  so  at  the  mo- 
ment when  the  deed  was  executed;  and  this  particularly  when 
a  ground  has  been  laid  for  the  introduction  of  the  testimony,  bj 
showing  that  the  party  was  at  times  insane,  previous  to  the  ex- 
ecution of  the  deed.  Noricood  v.  Morrow,  -1  Dev.  and  Bat., 
442. 

57.  If  the  deed  of  an  administrator  for  land,  which  his  intes- 
tate had  given  a  bond  to  convey  upon  the  payment  of  the  pura 
chase  money,  contain  an  acknowledgment  of  the  payment  to 
him  of  the  price,  it  will  op<  rate  as  a  release,  and  he  plenary 
evidence'  of  such  payment,  lint  a  recital  in  it,  that  it  appeared 
that  payment  had  been  made  to  his  intestate,  is  no  more  than 
his  declaration  of  his  belief  of  a  fact,  and  per  se  is  not  evidence 
at  all  against  the  heirs  of  such  intestate,  who  claim  not  under 
the  administrator,  but  directly  from  the  intestate.  miliums  v. 
Peal,  4  Dev.  and  Bat.,  471. 


EVIDENCE.— XIII.  469 

58.  Where  a  defendant  was  sued  in  ejectment  for  thirteen 
contiguous  tracts  of  land  and  the  plaintiff  proved  that  he  was 
in  tic  actual  possession  of  one,  and  contended  that,  as  the  others 
were  adjoining,  his  possession  must  be  considered  as  extending 
to  them  also;  it  was  held  to  be  competent  for  the  defendant  to 
give  in  evidence  his  own  declaration,  made  at  the  time  he  took 
possession  of  one  tracts,  that  he  disclaimed  any  possession  of  the 
other  twelve  tract:  and  such  declaration  was  received,  not 
tn  establish  the  verity  of  any  fact  asserted  therein,  hut  either 
as  part  of  the  fact  itself,  or  as  characterizing  and  illustrating 
the  fad  of  possession.     Davis  v.  Campbell,  1  [red.,  482. 

59.  In  a  civil  suit  against  several  persons,  who  have  a  joint 
interest,  the  declaration  of  one,  as  to  a  tact  within  his  own 
knowledge,  is  evidence  against  the  others  as  well  as  himself. 
But  where  a  suit,  as  fa-  instance  an  action  of  detinue,  is  brought 
against  one  for  certain  specific  property,  the  declarations  of 
anoth  .-  person,  who  holds  other  property  under  the  same  title, 
cannot  he  introduced  t>>  impugn  the  title  of  the  defendant.  He 
may  he  examined  as  a  witness  in  the  cause.  Roivland  v.  Row- 
land, 2  [red.,  61. 

60.  It  is  net  competent  for  a  plaintiff  to  give  in  evidence 
declarations  made  by  a  will-,  in  the  life  time  of  her  husband, 

:  i  i     liability  to  a  debt,  she  not  being  shown  to  lie  the 

4"  her  husband,  although  site  is  now  a  party  defendant 

on  the  record,  as  his  administratrix.     May  v.  Little,  '■'>  Ired.,  27. 

61.  Where  tic  sell  oi  joods,  at  the  time  of  the  sale,  pro- 
fei — .  to  sell  them  to  the  purchaser  in  his  individual  character, 
he  cannot,  in  an  action  against  a  firm  of  which  the  purchaser 
was  a  member,  give  in  evidence  the  declarations  or  admissions 
of  such  purchaser,  that  the  goods  were  purchased  for  the  benefit 
of  the  firm.     Lazarvs  v.  Long,  ■'>  Ired.,  39. 

lii'.  The  declarations  of  a  party  to  a  suit  in  his  own  favor,  made 
in  the  presence  of  the  opposite  party,  and  nut  contradicted  by 
him.  are  admissible.     Green  v.  Harris,  3  Ired.,  210. 

63.  The  declaration  of  a  tenant  in  possession  of  a  piece  of 
land,  that  he  claimed  according  to  the  boundaries  of  a  patent,  with 
which  he  cannot  connect  himself  by  a  chain  of  title,  is  not  admis- 
sihl  ■  as  evidence  for  himself  or  those  claiming-  under  him.  to 
show  that  his  constructive  possession  in  law  extended  beyond  his 
actual  possession,  by  cultivation,  fences,  &c.  Byrmrn  v.  Thomp- 
son, ■">  I  red.,  ">7.s. 

64.  Where  the  question  was  of  a  gift  or  loan  by  a  father  to 
his  son-in-law,  the  declarations  of  the  father  to  his  daghter,  wife 
of  his  son-in-law,  two  weeks  before'  the  delivery  of  the  property, 
as  to  the  nature  and  effect  of  the  delivery  he  was  about  to  maker 
were  held  to  be  proper  evidence  in  behalf  of  the  father-in-law 
against  his  son-in-law,  though  such  declarations  were  never  com- 
municated to  the  latter.     Moore  v.  Gwijn,  4  Ired.,  275. 


470  EVIDENCE.— XIII. 

C>5.  A  private  conversation  between  a  father  and  his  son,  and 
the  advice  of  the  latter,  as  to  the  conduct  the  father  sin  add 
pursue,  in  relation  to  the  public  sale  of  property  which  the 
father  claimed,  cannot  be  given  in  evidence  in  favor  of  the 
father.     Ibid. 

(>(>.  As  the  law  will  not  permit  the  plaintiff  to  he  a  witness  for 
himself,  neither  will  it  permit  him  to  make  his  own  acts  and 
declarations,  done  or  spoken  in  the  absence  of  the  defendant, 
■evidence  for  himself,  to  impeach  bis  adversary's  witnesses,  or  for 
any  other  purpose  tending  to  support  his  own  side  oi  the  issue. 
Ward  v.  Hutch.  4  I  red,  282. 

67.  Where  a  suit  is  brougbt  ©n  a  constable's  bond,  against  the 
sureties  alone,  a  receipt  signed  by  the  constable,  for  a  claim  to 
collect,  is  not  evidence  against  them.  State  v.  Fvllendwider,  4 
Ired  ,  364.     (This  rale  is  altered.     See  Rev.  <  !ode,  ch.  44,  sec.10. ) 

U.S.  A  surety,  in  general,  cannot  he  affected  by  evidence  of  an 
admission  made  by  his  principal,  unless  il  !»•  pari  oi' his  contract, 
as  i  hat  accounts  kept  by  him  shall  be  true.      Ibid. 

(i!>.  Where  the  constable  is  not  a  parry  defendant,  the  plaintiff 
may  examine  him  mi  oath,  and  such  testimony  is  of  a  higher 
grade  than  his  receipt.     Ibid. 

70.  Where  the  question  was  whether  tolls  were  paid  by  a 
person  to  a  public  turnpike  company  during  a  certain  period,  the 
collector,  during  that  period,  having  kept  no  hook:-:,  ami  being 
now  dead,  the  circumstances,  that  he  had  collected  tolls  from 
the  person  just  before  that  time,  that  during  thatperiod,  on  a 
oontesi  between  the  company  ami  the  person,  the  company 
directed  the  gates  to  be  shut  against  him  unless  the  tolls  were 
paid,  ami  that  the  person  was  bound  to  convey  the  public  mail 
over  the  road,  and  that  the  successor  of  the  deceased  collector, 
immediately  upon  his  coming  into  office,  collected  tolls,  were 
evidence  to  be  left  to  the  jury  that  the  tolls  had  been  paid  during 
the  disputed  period.  Newland  v.  Buncombe  Turnpike  C'>i>ii><nru, 
4  I,vd../.72.  II. 

71.  The  admissions  or  declarations  of  a  sheriff's  deputy  are 
evidence  againsl  tic  sheriff  when  they  accompany  the  official 
acts  oi'  the  deputy,  or  tend  to  charge  him.  he'  being  the  real 
party  in  the  cause,  for  lie  is  the  agent  of  the  sheriff  State  v. 
Allen,  :>  Ired.,  3(1. 

72.  Where,  upon  a  survey  in  an  action  of  ejectment,  the  de- 
fondant  admitted  certain  lines  to  '»■  the  lines  oi'  the  defendant's 
land,  and,  according  to  thai  boundary,  the  defendant  was  in  pos- 
session of  part  of  the  plaintiff's  land  without  seven  years  pos- 
session undercolor  of  title,  the  court,  upon  the  motion  of  the 
plaintiff's  counsel,  should  have  insl  ructed  the  jury  that  the  plain- 
tiff was  entitled  to  recover.      Wall  v.  Tomlinson,  5  Ired.,  548. 

73.  An  admission  by  a,  plaintiff,  that  he  had  received  a  part  of 
the  money  sued  for,  by  an  attachment  in  another  State,  is  no  ev- 


EVIDENCE.— XIII.  471 

idence  that  the  contiat  was  merged  in  a  judgment  of  that  State, 
where  no  record  of  the  attachment  is  produced.  Buchanan  v. 
Parker,  5  Ired.,  597. 

74.  The  declarations  and  admissions  of  an  agent,  after  his 
agency  has  ceased,  as  to  past  transactions,  are  not  competent  ev- 
idence against  his  principal.  Williams  v.  Williamson,  n'  Ired.. 
281. 

7.">.  To  make  acts  of  one  person  evidence  against  another,  as 
(lie  agent,  the  creation  of  the  agency  must,  in  the  first  instance 
he  established  by  the  proper  evidence,  independent  of  such  acts 
and  declarations  themselves.     Ibid. 

7(!.  The  declarations  of  a  person,  who  had  executed  a  deed, 
made  at  a  period  subsequent  to  such  execution,  are  not  evidence 
against  fchegrantee.  Hut  the  declarations  of  a  grantor,  between 
ili'  iiM  ■  when  the  deed  falsely  bears  date,  and  the  time  when  it 
was  actually  executed,  are  evidence  as  to  the  fraudulent  intent 
of  the  parties.      Wardv.  Saunders,  6  [red.,  382. 

77.  It  is  sufficient  to  admit  a  witness  to  prove  a  conversation 
of  the  defendant,  that  he  can  say.  he  can  state  all  that  passed  on 
the  occasion  when  the  conversation  occurred,  whether  the  rel- 
ative to  thai  controversy  or  any  other  subject.  Itis  no<  neces- 
sary for  him  to  I"-  able  to  state  all  the  conversations  of  the  de- 
fendant, which  he  heard  before  or  after  the  conversation  pro- 
posed to  be  given  in  evidence.     State  v.  Cowan,  7  Ired.,  239. 

78.  The  receipt  of  a  deputy  sheriff,  for  a  claim  put  into  his 
hands  for  collection,  is  evidence  against  the  sheriff,  in  an  act  inn 
for  tailing  to  collect  the  claim.  And  as  such  receipt  binds  the 
sheriff,  it  is.  under  the  act  of  1X44,  competent  evidence  against 
his  sureties  as  well  as  himself.  State  v.  HcGJiee,  7  Ired.,  377. 
(See  Rev.  ("ode.  ch.  44.  sec.  10.) 

79.  The  declarations  of  a  vendor,  after  he  had  sold  property, 
an-  not  evidence  against  his  vendee,  as  to  the  title  of  the  prop- 
erty.     Williams  v   Clayton,  7  Ired.,  442. 

80.  Under  the  act  of  1844,  any  acknowledgment  or  admission 
of  the  sheriff  or  other  officer,  where  admissible  against  him,  is 
also  admissible  against  his  sureties,  in  an  action  on  his  official 
bond.     States.  Woodside,8  Ired.,  1 04.     (See  Rev.  Code,  uh.  44, 

Sec.    10.) 

81.  In  aii  action  for  a  slave,  whicha  child  claims  on  the  ground 

that  the  slave  was  put  in  his  possession  by  his  parent,  and  that 
the  parent  afterwards  died  intestate  without  resuming  the  pos- 
session, evidence  of  the  declarations  of  the  parent  made  after 
the  possession  was  transferred  and  not  in  the  presence  of  the 
child,  that  he  had  lent,  and  not  given  the  slave,  is  inadmissible. 
Cowan  v.  Tucker,  8  Ired.,  426. 

82.  Where  the  declarations  of  one,  alleged  to  lie  an  agent,  are 
offered  in  evidence,  it  is  incumbent  on  the  judge  to  determine 
whether  there  is  a  prima  facie  case  of  agency,  so  as  to  render 


472  EVIDENCE.— XIII. 

the  acts  and    declarations  of  such   person  those  of  the  party 
whose  agent  he  is  alleged  to  be.     Munroe  v.   Stalls,  9    In. I.,  49. 

83.  Merely  serving  a  warrant  for  debt,  issued  by  a  justice,  is 
no  evidence  that  the  officer  was  the  agent  of  the  plaintiff  in  the 
warrant.     Ibid. 

84.  The  declarations  of  a  slave  at  any  particular  time,  as  to 
the  state  of  his  health,  are  from  necessity  admissible  in  evidence. 
Ttoulhaa  v.  White  9  [red.,  63. 

85.  Whenever  the  bodily  or  mental  feelings  of  an  individual, 
at  a  particular  time,  are  material  to  be  proved,  the  expression  of 
such  feelings,  made  at  or  shortly  before  such  time,  is  evidence  sub- 
ject of  course  to  be  weighed  by  the  jury.     il.'ul. 

86.  A  declaration  in  a  deed,  that  the  land  conveyed  by  it  had 

1 n  before  granted  to  a  certain   person,  is  not  evidence  for  the 

parties  to  the  deed,  that  in  fact  it  was  thus  granted.      Crump  v. 
Thompson,  9  [red.,  491. 

87.  The  receipt  of  a  deputy  sheriff,  showing  that  he  has,  as 
deputy  sheriff,  received  claims  for  collection,  is  good  evidence  in 
an  action  by  the  sheriff,  against  the  sun-ties  in  a  bond,  which 
the  deputy  has  given  him  tor  his  indemnity.  Mcintosh  v.  Bruce, 
9  Ired.,  oil. 

88.  The  declarations  of  counsel  on  the  trial  of  a  cause,  as  to 
matters  of  fact,  are  not  evidence  against  one,  who  was  manag- 
ing the  suit  as  agent  lor  the  client  himself.  Moffitx.  Wither- 
spoon,  10  [red.,  185. 

89.  In  an  action  of  assault  ami  battery,  when  the  defendant 
oifei'oil  to  show  that  he  was  not  actuated  by  malice  in  making 
the  assault,  it  is  competent  for  the  plaintiff  to  prove  in  reply 
that  the  defendant,  since  the  commencement  of  the  action,  had 
proposed  to  fight  him,  though  this  proof  could  not  have  been  of- 
fered in  chief.     Milh  v.  Carpenter,  10  Ired..  298. 

90.  A  party  may  give  in  evidence  the  declaration  of  a  deceas- 
ed person,  made  against  his  interest,  upon  the  subject  matter  in 
controversy.     Peace  v.  Jenleins,  10  Ired.,  355. 

91.  ( >n  the  trail  of  issues  directed  by  the  court,  upon  a  petition 
for  a  divorce,  the  mere  admission  of  the  husband,  that  he  was 
guilty  of  the  adultery  charged,  is  not  admissible  as  evidence. 
Hansley  v.  Hansley,  lo  Ired.,  506. 

92.  The  declarations  of  a  slave,  as  to  his  health  and  the  con- 
dition of  his  body,  arc  admissible  in  evidence,  in  an  action 
brought  by  his  master  to  recover  damages  for  an  injury  done  to 
him.      Biles  v.  Holmes,  11  Ired.,  16. 

93.  In  an  action,  in  which  is  involved  the  bona  fides  of  a  con- 
tract for  the  sale  of  goods,  the  declaration  of  the  vendors  at  the 
time  of  the  sale,  that  they  were  indebted  to  the  vendee,  and  an 
agreement  between  the  parties  that  the  price  of  the  goods,  or  a 
part  of  it,  was  to  be  credited  on  that  debt,  is  competent  evidence, 


EVIDENCE.— XIII.  473 

though  the  action  is  against  third  persons  for  seizing  and  con- 
verting the  goods.     Pattern  v.  Dyke,  11  Ired.  237. 

!i4.  So,  also  the  declaration  of  the  vendors,  made  some  time 
before  the  contract,  to  another  person  besides  the  vendee,  that 
they  weic  indebted  to  the  vendee,  is  competent  evidence  to 
prove  such  indebtedness,  in  an  action  by  the  vendee  against  third 
persons.      Ibid. 

95.  Where  a  man  has  conveyed  a  personal  chattel,  bul  still 
retains  the  possession,    Ids  acts  and   declarations,  even 

qui  nt  to  such  conveyance,  while  he  continues  in  possession,  are 
evidence  against  the  vendee  or  grantee  on  a  question  of  fraud. 
Foster  v.   Wood/in,  11  Ired.,  339. 

96.  The  official  returns  of  a  guardian  to  the  county  c  airt,  of 
bh<      ate  of  his  account  with  his  ward,  are  admissible  evidence 

•  the  clerk  of  the  county  court  for  neglect  of  duly  in  not 
issuing  a  sei.  fa.  as  required  by  law,  to  cause  the  guardian  to 
renew  his  bond.     Statev.  Biggs,  11  Ired.,  412, 

97.  In  an  action  brought  by  a  mortgagee  against  a  creditor  of 
tin-  I'm.  agor,  claiming  property  under  an  execution  against 
tiie  mortgagor,  ir  being  alleged  that  the  mortgage  was  made 
with  i  ii  mduisnt  rati  ni  the  de<  urations  :  i  the  mortgagor1  im- 
mediately before  and  in  contemplation  of  the  act,  may  be  given 
in  evidence  against  the  mortgagee;  but  his  declarations  after  tha 
ael  are  not  admissible.     Harshaw  v.  Moore,  12  Ired..  247. 

98.  Where  a  plaintiff  gives  evidence  of  the  declarations  of  a 
defendant,  the  defendant  has  a  right  to  call  for  all  he  said  at  the 
same  time,  provided  it  be  pertinent  to  the  issues,  or  to  the  declar- 
ations proved  bv  the  plaintiff,  but  not  otherwise.     Overman  v. 

l:;  Ired.,  1. 

99.  It  seems,  that,  although  a  proposition  to  compromise 
rejected  by  the  other  party  could  not  be  heard,  yet  admissions  of 
facts,  made  by  the  defendant  in  the  conversation  with  the  party 
proposing  the  compromise,  may.  But  there  can  he  no  doul.it, 
that  such  admissions  are  competent  evidence,  when  made  to  one 
who  informs  the  defendant  that  he  has  no  authority  to  compro- 
mise.    Daniel  v.   WUkerson,  13  Ired..  329. 

100.  A  map,  which  is  .not  shown  to  have  been  made  before 
the  conveyance  under  which  a  party  claims,  is  not  evidence  for 
such  party.     Burnett  v.  Thompson,  b">  Ired..  379. 

101.  Tin- declarations  of  a  sick  slave,  at  any  particular  time, 
of  his  sufferings  and  condition,  are  evidence  so  far  as  they  refer 
to  the  time  at  which  they  are  made;  but  declarations  of  such  a 
person  as  to  his  state  and  condition  at  any  preceding  period  are 
inadmissible.     Lush  v.  McDaniel,  13  Ired.,  485. 

102.  A  party  may  give  in  evidence  declarations  made  by  him- 
self and  another  in  regard  to,  and  accompanying  the  transfer  of, 
personal  property  between  them,  for  the  purpose  of  showing  the 
nature  of  the  transaction;  and  a  fortiori  are  such  declarations 


474  EVIDENCE.— XIII. 

admissible  to  sustain  the  other  person,  when  he  is  called  on  to  tes- 
tify to  the  transaction,  and  his  credibility  is  impeached.  Fain 
v.  Edwards,  Bush,  64. 

103.  The  declarations  of  a  person  under  whom  a  party  derives 
title,  made  before,  or  simultaneously  with  the  sale,  are  admissi- 
ble in  evidence  by  the  other  party,  to  show  fraud  in  the  sale. 
Satterwhite  v.  Hicks,  Busb.,  105. 

104.  On  a  petition  fur  dower,  the  heir  produced  a  deed  from 
the  husband  dated  thirteen  years  before  his  inter-marriage  with 
the  petitioner,  and  proved  by  a  subscribing  witness  a  delivery  of 
the  deed  a  short  time  before  the  husband's  death,  and  low  declar- 
ation that  it  had  been  delivered  many  years  before,  it  was  held 
that  this  declaration  was  ao  evidence  of  any  previous  delivery, 
as  against  the  petitioner.     Pinner  v.  Pinner,  Busb.,  475. 

105.  Whether  tin-  tenant  in  possession  is  the  tenant  of  the 
defendant,  or  of  another,  as  whose  land  the  premises  in  contro- 
versy had  been  sold  under  execution,  is  a  question  of  fad  to  he 
submitted  to  the  jury,  and  the  deeds  under  which  the  defendant 
e-ntered  are  clearly  admissible  on  that  subject.  McAvlay  v. 
Etornhart,  1  Jones,  502. 

lOil.  Evidence  of  "a  family  arrangement  "  to  defraud  credi- 
tors, by  giving  off  other  lands  than  the  tract  in  dispute,  to  other 
sons  as  they  arrived  of  age,  it  not  being  shown  that  the  father 
was  in  debt  at  the  time  of  I  he  conveyances,  is  not  admissible 
on  the  question  of  fraud.     Ibid. 

107.  To  make  i  he  acts  and  declarations  of  a  person  evidence 
against  a  party,  upon  the  ground  of  his  being  an  agent,  such 
agency  must  he  established  by  evidence  independent  of  such 
acts  and  declarations.     Royalv.  Sprinkle,  1  dimes,  ."ill."). 

108.  In  a  question  of  the  fraudulent  conveyance  of  a  slave, 
the  plaintiff  may  go  into  the  particulars  of  a  trade  made  by 
him  with  the  alleged  fraudulent  grantor,  and  a  subsequent  modi- 
fication of  that  trade,  in  order  to  show  that  he  was  a.  creditor  of 
such  grantor.     Hblmesly  v.  Hogue.  -  Jones,  391. 

109.  Upon  the  question  of  the  bona  fides  of  a  deed,  alleged  to 
have  been  executed  I  >y  one  in  fraud  of  a  contemplated  marriage, 
what  the  husband  said  in  favor  of  the  deed,  even  before  mar- 
riage, is  not  admissble  against  the  wife  claiming  dower;  be- 
cause her  claim  is  under  the  law  paramount  to  her  husband. 
Pinner  v.  Pinner,  -  .'ones.  ;>'.>.s. 

110.  A  receipt  is  only  a  declaration  in  writing  that  a  sum  of 
money,  or  of  some  specific  thing,  has  been  paid  or  delivered  by 
one  person  to  another,  and  is  not  conclusive  between  the  parties, 
but  may  he  explained.     Hill  v.  Robinson,  3  Jones,  501. 

111.  A  warranty  of  the  soundness  of  a  slave,  contained  in  a 
bill  of  sale  is  no  evidence  that  the  party  making  the  warranty 
admitted  thereby  the  soundness  of  the  slave.  Potion  v.  Porter, 
3  Jones,  539. 


EVIDENCE.— XIII.  47a 

112.  A  person  cannot  produce  his  own  declarations  in  evi- 
dence in  his  favor,  though  he  was  not  interested  at  the  time 
he  made  them.      Whitev.  Gfreen,  5  Jones,  47. 

113.  Where  a  party,  who  made  a  com  eyance  of  a  slave  which 
was  alleged  to  have  been  fraudulent,  remained  in  possession  of 
the  slave  after  the  conveyance,  what  he  said  about  the  charac- 
terol  his  possession  was  held  to  be  competent  to  impeach  the 
conveyance.       Marsh  v.  Hampton,  5  Jones,  382. 

114.  In  an  action  for  a  deceit  in  tin-  sale  of  a  chattel,  the  de- 
fendant may.  upon  the  question  of  a  scienter,  give  in  evidence 
what  was  told  him,  by  tin-  person  from  whom  he  purchased,  at 
the  time  of  his  purchase.     Hinson  v.  King,  5  Jones,  393. 

11.").  The  declarations oi  theprevious  owner  of  a  tractof  land, 
made  while  owning  it,  are  admissible  as  evidence  against  one 
claiming  under  him.     Canskr  v.  Fite,  5  Jones,  -i'21. 

Hi!,  in  a  suit  by  partners  for  a  debt  alleged  bo  lie  due  the 
firm,  tlie  admissions  of  one  of  the  partners,  that  lie  had  used  the 
debl  of  the  firm  in  settling  a  private  debt  he  owed  defendant, 
and  that  he  had  done  so  with  the  consent  of  the  other  partner, 
arc  admissible  against  the  plaintiffs.  Carter  v.  Beaman,  ti  Jones, 
44. 

117.  What  is  said  by  a  person  of  color,  in  an  indictment 
against  a  white  man  foraforcible  trespass,  in  explanation  of  the 
possession  which  he  then  had  of  land,  is  admissible  against  the 
defendanl  asa  pari  of  the  res  gestae,  hut  what  he  said  aboutsuch 
puss:  ssion,  after  lie  had  left  the  land,  is  not  admissible.  Statev. 
E:it',<-<i.  ii  Jones,  133. 

118.  The  tact  that  a  particular  line  was  run  by  commission- 
ers appointed  to  divide  a  tract  of  land  among  tenants  in  com- 
mon, under  an  order  in  anexparte  proceeding,  is  evidence 
aginst  them,  and  all  claiming  under  them,  to  prove  thai  this  is 
the  true  line  of  such  tract;  being  the  act  of  the  parties  them- 
selves.    Hobbsv.  &a£law,  6  Jones,  171. 

119.  In  an  action  lor  the  breach  of  a  warranty  of  soundness, 
when-  the  allegation  was  thai  theslave  labored  under  a  chronic 

.  of  which  he  died  in  a  few  months  after  the  sale,  it  was 
tttld  that  the  declarations  of  the  slave  as  to  his  then  health  and 
condition,  made  two  months  before  the  sale,  and  at  more 
distant  periods,  also  similar  declarations  made  several  weeks  after 
the  sat-,  were  competent.     BeU  v.  Morrisett,  <>  Jones,  178. 

120.  T!i<  admissions  of  an  agent  ha- the  transaction  of  busi- 
ness, while  he  has  the  business  in  hand,  are  competenl  evidence 
against  his  principal.     Howard  v.  Stutt8\  6  Jones,  372. 

121.  Where  one.  threatened  with  a  suit  for  slander,  gave  a 
sum  of  money  to  another  to  indemnify  him  against  loss  by 
such  a  suit,  and,  to  that  end,  took  from  such  person  a  bond  in  a 
penalty  conditioned  to  save  him  harmless,  it  was  held,  that  such 
arrangement   and   bond  were  not  competent    evidence  against 


47C  EVIDENCE.— XIII. 

the  defendant  as  an  admission  of  his  guilt.     Lucas  v.  Nichols,  7 
Jones.  32. 

122.  A  note  given  for  rent,  and  reciting  that  the  maker  was 
the  tenant  of  the  payee,  and  had  been  so  for  ten  years,  is  evi- 
dence in  qualify  and  explain  the  then  possession,  but  it  cannot 
relate  back  and  prove  a  tenancy  for  any  length  of  time.  McKay 
v.  Glover,  7  denes,  41. 

123.  What  was  said  by  the  defendant  to  one  who  was  sent  by 
him,  not  as  an  agent  authorised  to  contract,  but  merely  as  a 
messi  nger  to  call  in  the  plaintiff,  is  nut  competent  as  evidence 
of  the  contract  between  the  parties.  Pursell  v.  Long,  7  Jones., 
102. 

124.  In  an  action  of  assumpsit,  in  which  the  plaintiff  declared 
upon  a  special  promise  by  the  defendant  to  pay  the  balance  of 
au  account  rendered,  it  was  held  that  the  account  itself,  as  made 
out  by  the  plaintiff,  was  not  competent  evidence  of  the  correct- 
ness of  the  items,  and  that,  therefore,  it  was  error  in  the  judge 
to  permit  the  jury  to  take  the  account  out  with  them,  upon  re- 
tiring to  make  up  their  verdict,  if  dene  against  the  consent  of 
the  defendant.      Watson  v.  Davis,  7  Jones,  178. 

125.  The  return  made  by  a  constable,  on  the  back  of  an  exe- 
cution, is  evidence  tor  him  of  the  fact  of  a  levy,  and  of  the 
time  when  it  was  made.     Grandy  v.  McPherson,  7  Jones,  347. 

126.  What  was  said  by  a  constable  at  the  time  of  making  a 
levy,  as  to  the  fact  of  the  levy,  was  In  hi  to  lie  admissible  uspars 
rei  gestce,  and  as  corroborative  of  the  evidence  afforded  by  the 
return.      Ibid. 

127.  The  contents  of  a  letter  from  the  plaintiff  to  the  defen- 
dant are  evidence  for  the  former  only  to  prove  a  demand,  or  to' 
show  the  pertinency,  or  explain  the  meaning,  of  any  reply  which 
the- defendant  may  have  made  to  it.  Higgins  v.  Norfli  Carolina 
Railroail  Company,  7  Jones,  470. 

12*.  Where  a  letter  written  by  the  plaintiff,  and  strongly 
stating  his  case,  was  permitted  to  be  read  to  the  .jury,  and 
pressed  by  his  counsel  in  the  argument,  although  it  was  admis- 
sible only  for  a  limited  purpose,  it  was- held  to  he  error  to  pro- 
nounce that  the  whole  letter  had  become  evidence,  because  the 
defendant,  after  having  in  vain  objected  to  its  admission,  had 
relied  on  a  part  of  it  for  his  defence.     Ibid. 

129.  The  possession  of  personal  chattels  is  not  such  a  fact,  as 
entitles  the  party  holding  it  to  give  his  own  declarations  in  evi- 
dence either  to  establish  his  title,  or  to  contradict  the  witnesses 
of  the  other  side.      Strindlc  v.   Harden,  7  Jones,  .r)75. 

130.  The  declarations  of  a  slave,  that  he  is  suffering  from  pain 
and  disease,  are  'admissible,  and,  to  make  them  so,  it  is  not  ne- 
cessary to  prove  his  unsoundness  by  other  evidence.  HcndersoJi 
v.  Crouse,  7  Jones,  623. 

131.  A  naked  declaration  of  a  debtor,  in  embarrassed  circum- 


EVIDENCE.  —  XIII.  477 

stances,  that  an  assignment  of  a  note  theretofore  made  by  him 
was  bona  fide  and  for  valuable  consideration,  is  not  admissible 
as  evidence  against  creditors  that  such  was  the  fact,  and  in  the 
absence  of  other  testimony  such  assignment  was  held,  to  be  void. 
Griffin  v    Tripp,  8  Jones,  64 

132.  Where,  in  an  action  to  recover  the  value  of  certain  slaves. 
the  plaintiff  sought  to  set  aside  a  conveyance  of  them  to  the 
honor's  daughter,  and  offered  evidence  that  the  donor  had  grand- 
children by  another  daughter,  who  were  p -and  in  need  of  her 

bounty,  it  uh  held  competent,  in  reply  to  this  evidence,  to  pro- 
duce a  conveyance,  by  which  the  donor  had  provided  for  such 
grand-children,  by  the  gift  of  other  property.  Hughes  v.  !/</>- 
nam,  8  Jones,  127. 

133.  Where  the  question  betwe  m  the  parties  was,  whether  the 
plaintiff  had  agreed  to  accept  a  third  person  for  the  performance 
of  the  contract  sued  on,  instead  of  the  defendant,  and  the  ten- 
der of  a  sum  of  money  by  such  third  person,  and  its  refusal,  to- 
gether with  the  accompanying  expressions  of  the  plaintiff,  were 
relied  on  against  him,  it  was  held  that  a  written  receipt  pi 

by  liini.  and  offered  as  the  condition  on  which  he  would  receive 
the  money,  was  competent  evidence  for  him.  Myers  v.  Glaerry, 
s  Jones,  144. 

134.  Where  the  wwner  of  rice,  which  had  been  burned  at  ;t 
mill,  went  to  one  of  the  partners  in  the  mill,  who  was'mot  cogni- 
zant of  the  state  of  the  business,  and  demanded  a  certain  quan- 
tity of  rice,  to  which  he  replied  that  "it  was  nothing  more  than 
he  expected,"  it  was  held  that  this  was  not  admission  of  the 
quantity.     Ashev.  DeRosset,  8  Jones,  240. 

135.  Where  the  question  was  whether  B,  who  occupied  the 
land  in  controversy,  did  so  as  the  tenant  oi  the  plaintiff,  and  B 
testified,  that  he  was  carried  upon  the  premises  by  a  person  who 
Was  a  tenant  of  the  plaintiff,  and  left  there  fraudulently  and 
treacherously,  in  order  to  get  him  off  another  tract  of  land. 
and  that  he  had  never  held  it  as  the  t<  nant  of  the  plaintiff,  it 
was  held  to  bi  competent  for  him  to  state  further,  in  order  to 
strengthen  his  testimony,  thai  bis  occupation  was  as  the  tenant 
of  the  defendant.     Fousi  v.  Trice,  >s  Jones,  200. 

136.  The  d  larations  of  a  wife,  made  shortly  after  the  birth 
of  a  child,  that  it  had  been  born  alive,  are  not  admissible  for  hi  r 
husband,  to  prove  his  claim  to  be  a  tenant  by  the  courtesy  of  his 
wii'-'s  land.     Gardner  v.  Klufts,  8  Jones,  375. 

]'.',!.  The  declarations  of  the  occupant  of  land,  as  to  the  man- 
ner in  which  he  entered  into  :  !  m,  are  competent  as  evi- 
dence against  the  defendant,  in  an  action  of  ejectment  in  which 
he  defends  as  landlord.     FovM  v.  Trice,  8  Jones,  490. 

See  (Compromise,  1-2.)  (Deed — Of  the  executionand  date  of 
a  deed.  27.)  (Ejectment — Of  the  defence  and  herein  of  the  con- 
sent rule,  17.)     (Evidence — In  criminal  proceedings  and  indict- 


478  EVIDENCE.— XIII.  -XIV. 

merits,  8-12-13-15-17-18-25-30-32-33-34-40-42-51-53-64-68 
69-70-74-79-81-82-86  -87-98-101-103-104-105-107-114-115, 
122-124-128-129.)  (Execution — When  and  to  what  county  it 
may  issue,  and  of  its  return,  2.)  (Husband  and  Wife — Of 
actions  by  and  against  husband  and  wife,  1  I.)  (Warranty — Of 
the  damages  to  be  recovered,  10.)  (Widow — Other  dower.  26.1 
(Wills— Of  holograph  wills,  6.) 

XIV.       I'lT.UC    DOCUMENTS. 

1.  In  ejectment  to  prove  his  boundary,  the  plaintiff  offered  Ln 
evidence  the  re<  ord  of  a  petition  filed  in  1768,  by  one  of  the  old 
proprietors  of  the  land,  before  the  governor  in  council,  praying 
for  a  re-survey  of  his  grant,  which  was  dated  in  1707,  the  order 
in  council  for  a  re-survey,  directed  to  the  surveyor  general,  and 
the  re-survey  thereof  made  in  L768;  Jieldth&t  the  evidence  offered 
was  inadmissible.     Osborn  v.  Coward,  2  Murph.,  77. 

2.  A  parish  register  of  marriages,  birth  and  dea  hs,  kepi  pur- 
suant to  the  act  of  1715,  is  good  evidence  to  prove  pedigree,  and 
that  the  several  persons,  whose  pedigree  is  thus  proved,  are 
within  the  saving  of  the  statute  of  limitations.  Jaco  ks  v.  <,'■'- 
Hum.  •">  Murph.,  47.  (The  act  of  1715  became  obsolete,  but,  by 
act  of  1850,  marriages  are  directed  to  be  recorded.  See  Revised 
Code,  oh.  <>s.  sec.  4.) 

3.  Under  the  act  of  1806,  relative  to  the  militia,  the  ci  rtificatcs 
of  the  adjutant  general  was  only  evidence  of  the  delinquency 
of  the  officer;  but  not  that  the  person  sued  was  the  officer  boun»l 
tn  make  the  return.      Governor  v.  Bell,  3  Murph.,  331. 

4.  Under  the  act  of  1806,  the  certificate  of  the  adjutant  gen- 
eral was  only  evidence  of  the  delinquency  of  the  officer,  in  not 
making  returns  to  himself:  he  cannot,  therefore,  certify  that 
a  colonel  of  cavalry  did  not  make  his  return  to  the  major  gen-^ 
oral.     Governor  v.  Jeffreys,  1  Hawks,  207. 

5.  When  a  document  is  offered  in  evidence,  purporting  to 
have  been  signed  by  a  public  agent,  his  signature  must  be 
proved.      Yonaguskee  v.  Coleman,  3  Hawks,  174. 

6.  To  prove  a  misdescription  in  a  license  to  a  coasting  vessel, 
the  license  itself  should  be  produced;  a  mistake  in  thai  part  of 
the  enrolment,  which  recites  a  description  contained  in  a  former 
enrolment,  is  no1  evidence  of  a  similar  mistake  in  the  license. 
Felton  v.  McDonald,  4  Dev.,   L-06 

7.  The  mere  delivery  by  a  clerk  to  a  sheriff  of  a  book,  pur- 
porting to  l>e  a  tax  list,  unauthenticated  by  the  official  certifi- 
cate of  the  clerk,  is  not  competent  evidence  that  such  was  the 
tax  list.      Kelly  v.  Craig,  5  Ired.,  129. 

s.  Copies  of  abstracts  entered  in  Lord  Granville's  office  are 
evidence.     Clarice  v  Diggs,  (>  Ired.,  159. 

9.    By  the  law  merchant,  a  protest  of  a  bill   by  a  notary  public 


EVIDENCE.— XIY.-XV.-XVI.  479 

is,  in  itself,  evidence.  And  byoui  statute,  such  protest  is  prima 
facie  evidence.  Gordon  v.  Price,  10  Ired.,  385.  (See  Rev.  Code, 
oh.  13,  sec.  9. ) 

10.  A  copy  of  a  grant  taken  from  a  book,  in  the  office  of  the 
Secretary  of  State,  purporting  to  have  been  issued  in  1711!,  by 
Charles  Eden  and  others,  who  were  the  governor  and  council, 
although  but  lately  registered,  is  admissible  as  evidence  of  title. 
Archibald  v.  Davis,  4  Jones,  133. 


1.  Where  old  judicial  proceedings  speak  of  the  existence  of 
old  statutes,  passed  prior  to  any  printed  in  the  statute  book,  it 
seems,  that  such  statutes  will  thence  be  presumed  to  have  had 
an  existence.     Sladt  v.  Smith,  1  Hay,  248,  (286.) 

'2.  As  the  times  of  holding  the  county  and  superior  courts  arc 
fixed  by  the  statute  law,  the  court  will  judicially  take  notice  oA 
the  times  when  they  commence.     Fosters.  Frost,  I   Dev.,  424. 

3.  A  statute  is  conclusive  evidence  as  to  all  the  public  facts 
which  it  recites.     Kello  v.  Maget,  1  Dev.  and  Bat.,  414. 

XVI.   RECORD  OF  COURTS.  THE  PROOF  AND  EFFECT  OF  THEM. 

1.  A  certificate  of  the  clerk  of  a  court,  that  it  appeared  to  him 
from  the  docket,  that  a  judgment  had  been  entered  for  so  much, 
and  that  execution  issued  thereon,  and  that  the  rest  of  the 
record,  except  what  appeared  on  the  docket  was  lost,  cannot 
be  received  as  a  copy  of  the  record.  Wilcox  v.  Ray,  1  Hay., 
41().  (472.) 

2.  The  loss  of  a  record  must  be  proved  by  some  person  on  oath. 
anh  not  by  the  certificate  of  the  clerk.     11. id. 

;!.  Whether  the  contents  of  a   record,  lost    or  destroyed,  can 

be  proved  otherwise  than  by  a  copy,  quaere.     Harget  v. 2 

Hay..  76,  (243.) 

4.  Where  the  minutes  of  the  court  do  rot  state  an  adminis- 
tration to  have  been  granted  at  a  certain  time,  the  certificate  of 
the  clerk,  thai  an  administration  was  granted,  is  not  evidence  of 

I  ostler  v.  ScbU,  2  Hay.,  179,  (375.) 

5.  When  the  record  ol  a  particular  term  appears  to  be  per- 
fect on  its  face,  parol  evidence  shall  not  be  givi  n  that  an  admin- 
istration was  granted  at  that  term.      Ibid. 

(J.  Wheie  the  records  of  a  court  of  admiralty  appear  to  have 
been  loosely  and  carelessly  kept  on  slips  of  paper,  depositions 
may  be  read  to  prove  that  an  order  of  sale  was  made  in  the 
cause.     Jones  v.   Walker,  2  May.,  291,  (475.) 

7.  Parol  evidence  was  admitted  to  prove  that  a  ca.  sa.  issue. 1. 
and  that  the  sheriff  returned  on  it,  "not  found,"  and  that  it  was 


480  EVIDENCE.— XVI. 

lost  or  mislaid.  Stuart  v.  ffitzgerald,  2  Murph.,  2.35,  S.  C.  1  Car. 
L.  R.,  234,  (17.) 

8.  The  certificate  of  aclerk,  that  a  deed  had  been  ''duly  proved," 
is  sufficient,  as  everything  will  he  presumed  to  have  been  prop- 
erly done;  unless  the  certificate  pies  on  to  state  how  it  was 
proved,  and  omits  a  material  circumstance;  as.  it'  it  were  stated 
that  the  instrument  was  "duly  proved  by  the  oath  of  A,  who 
proved  the  handwriting  of  ]'>.  II.,  the  subscribing  witness,  and 
of  J.  H.,  the  maker  of  it,"  without  statin--  that  B.  II..  was  dead 
or  had  removed  away.     Horton  v.  Haghy,  1  Hawks,  48. 

9.  An  execution,  when  returned,  becomes  part  of  the  record, 
and  a  certified  copy  thereof  is  evidence.  Pigot  v.  /t,<ri.s,  ;> 
Hawks,  25. 

10.  Where  the  only  evidence  of  a  judgment,  which  could  lie 
produced  by  a  plaintiff  in  support  of  his  title,  was  a  mere  mem- 
orandum of  the  amount  of  judgment  on  the  clerk's  docket,  it  was 
held,  that  the  entry,  having'  been  made  in  a  new  and  frontier 
county,  at  the  close  of  the  revolution,  might  he  received  as  a 
record,  though  if  tin;  judgment  were  of  recent  date  it  would  be 
otherwise.      Walker  v.  Greenle,  3  Hawks,  281. 

11.  In  a  suit  against  justices  for  appointing  a  guardian  and 
not  taking  a  bond  with  good  sureties  from  him,  a  record  was 
offered  by  the  plaintiff,  in  which  it  appeared  that,  at  the  opening 
of  the  county  courl  at-  a  certain  term,  the  defendants  were  on  the 
bench,  and  that  various  orders  w<  re  entered  on  the  record  of 
that  day,  and  among  them  the  appointment  of  the  guardian  in 
question;  it  ivas  held  that  it  was  not  prima  facie  evidence  of  the 
fact,  that  the  defendants  made  the  appointment,  because  a  re- 
cord, if  evidence  at  all,  is  conclusive ;  it  was  evidence,  from  which 
no  inference  of  law  could  be  drawn,  hut  it  should  have  been  left 
to  the  jury  to  draw  from  it  the  inference  of  fact,  that  the  defend- 
ants were  the-  justices  who  made  the  appointment,  if  they  should 
be  satisfied  that  such  inference  was  just.  liawls  v.  Deans,  4 
Hawks,  299. 

12.  Where  the  clerk-  of  the  court  certified,  that  "the  following 
and  none  other"  were  the  bonds  executed  by  thesheriff,  thecer- 
tificate  was  held  to  he  no  evidence  that  no  other  bond  was  given, 
because  this  fact,  not  being  of  record,  he  could  not  certify  it 
officially.     Governor  v.  McAfee,  2  Dev.  15. 

13.  The  Certificate  of  the  clerk'  of  the  county  court  is  evidence 

of  the  prbate  of  a  deed,  hut  it  is  supposed  to  be  the  result  of 
tacts  proved  by  the  record;  and,  where  it  is  contradicted  by  tho 
record,  it  is  controlled  by  it.     Burgess  v.  Wilson,  2  Dev.,  306. 

14.  Theas  of  a  court  can  lie  proved  only  by  its  own  records, 
and  parol  proof  for  that  purpose  is.  therefore,  inadmissible. 
Spencer  v.  Cohoon,  1  Dev.  and  Bat.,  27. 

15.  It  is  not  necessary  that  a  transcript  of  a  record,  containing 
the  copy  of  an  execution,  should  set  forth  that  there  was  a  seal 


EVIDENCE.— XVI.  481 

to  the  execution.  But  if  such  an  objection  would  lie,  it  should 
have  been  ta 'ten  when  the  record  was  offered  in  evidence  and 
is  too  late  on  a  motion  for  a  new  trial.     Dawdle  v.  Sudam  .';. 

Ired.,  4.i.  f ' 

16.  When  the  original  records  are  offered  in  evidence  in  the 
court  to  which  they  belong,  they  should  be  received,  because 
the  court  is  presumed  in  law  to  know  its  own  proceedings;  but 
in  another  court,  the  proper  evidence  is  a  copy  of  the  record' 
authenticated  by  the  seal  of  the  court  Ward  v.  Saunders  G 
Ired,  382. 

17.  En  the  case  of  a  return  of  a  justiee-'s  execution  levied  on, 
land  with  the  corresponding  papers,  it  is  not  necessary  that  it 
should  appear,  by  a  distinct  certificate,  that  these  papers  have 
been  enrolled  in  bound  books,  as  required  by  the  act  of  Vssem 
bly.  The  ordinary  copy  of  the  record,  certified  by  the  clerk 
under  the  seal  ,,1  the  court,  is  sufficient  evidence  of  the  enrol- 
ment.    Ibid. 

18.  Whether  the  minutes  of  the  county  court,  showing-  the- 
return  by  a  sheriff  of  the  list  of  lands  to  be  sold  &>r  (axe.?  due 
on  the  tax  lists  ot  a  particular  year,  and  that  it  was  read  in  open 
court,  and  thai  a  copy  was  set  up  in  the  court  room,  designating 
the  tract  of  laud,  the  name  of  the  owner,  and  the  amount  of  tax 
unpaid,  are  not  sufficient  evidence  to  sustain  a  sale  for  taxes 
without  producing  the  list  itself,  quaere.  But  these  minutes  are 
proper  <->  ,,|  .nc  to  be  left  to  the  jury,  on  the  question  of  the  ex- 
istence of  such  list,  especially  after  the  proper  search  has  been 
proved,  and  its  loss  established.     Hair  v.  Melvin,  2  Jones,  59 

l9-  The  act  of  1831",  ch.  96,  concerning  the  burning  'of  the 
records  of  Hertford  comity,  extended  by  the  act  of  1844  ch  53 
(^Montgomery  county,  relates  to  deeds  depending  for  their  va- 
lidity upon  such  records,  which  were  in  existence  when  the  re- 
cords of  the  said  counties  respectively  were   burnt,  and  not  to 

deeds  which  might   I xeeuted  afterwards.     Morrison  v   Cook* 

2  Jones,  lli. 

20.  A  fact,  which  is  required  to  be  proved  By  a  record  can 
only  be  proved  by  an  exemplified  copy  of  the  record  itself  and" 
no  certificate  of  the  clerk,  as  to  its  substance  or  effect  will  an- 
swer.    Drake  v.  Merrell,  2  Jones,  368. 

21.  A  record  of  the  proceedings  of  a  court,  ordering  partition 
ot  a  tract  of  land,  and  a  long  acquiescence  and  actual  occupa- 
tion by  the  heirs  according  to  the  proceeding,  are  obligatory  on 
them;  and  one  thus  acquiescing,  who  was  mentioned  as  one  of 
the  hens  m  the  body  of  the  petition,  but  was  not  made  a  party 
plaintiff  or  defendant,  is  bound  by  the  proceeding,  and  may 
therefore,  offer  it  in  evidence  in  support  of  his  title.  Arihibald 
v.  Bans:  4  Jones,  133. 

22.  \\  hen  the  report  of  commissioners,  making  a  partition  of 
laud,  is  confirmed   by  the  court,  and  filed  among  the  papers  of 


482  EVIDENCE.— XVi-XVII. 

the  case,  in  the  clerk's  office,  it  is  enrolled,  so  as  to  meet  the  re- 
quisitions of  the  act.     Ibid.     (See  Rev.  Code,  ch.  82,  sec.  1.) 

23.  A  plat  by  a  surveyor,  (representing  various  tracts  and  lots 
of  land  of  the  ancestor,  corresponding  in  number  with  the  num- 
ber of  the  heirs  set  out  in  the  petition,  filed  with  the  papers  of 
the  case  and  registered  with  them,  may  properly  be  taken  as  the 
plat  referred  to  in  the  report  of  the  commissioners,  and  admitted 
as  evidence  to  explain  such  report.  '  Ibid. 

24.  Either  of  the  two  copies  of  an  order  made  by  the  county 
court  in  appointing  an  overseer  of  a  road,  directed  by  the  law  to 
be  issued  by  the  clerk,  is  proper  and  sufficient  evidence  of  the 
overseer's  appointment.     Thompson  v.  Kirkpatrick,  5  -Tones,  366. 

See  (Ejectment — Trespass  for  mesne  profits,  5-7—8.) 

XVII.    PROCEEDINGS  IN  OTHER  Sl'ITS,    WHEN    AXD  HOW  FAR  EVIDENCE. 

A  confession  in  an  answer  to  a  bill  in  equity  may  be  given  in 
evidence  against  the  defendant,  in  an  action  by  a  third  person. 
Kiddie  v.  Debrutz,  1  liny..  120  (4S5.) 

2.  Where  a  slave  has  been  recovered  of  a  purchaser,  in  a  suit 
by  him  against  the  vendor,  the  record  of  the  recovery  against 
the  purchaser  shall  not  be  evidence  of  the  title  of  the  recovered 
but  shall  I"'  received  to  show  the  fact  of  the  purchaser's  eviction 
and  the  amount  of  damages.  Sanders  v.  Hamilton,  2  Hay..  282, 
(458.) 

3.  An  old  survey,  made  in  a  suit  between  A  and  B,  cannot  be 
given  in  evidence  in  a  suit  between  B  and  C,  to  effect  the  lat- 
ter.    Sutton  v.  Blount,  2  Hay.,  343,  (524. ) 

4.  If  the  vendee  of  a  slave  be  sued,  andgive  notice  to  the  ven- 
dor of  the.  suit,  the  record  of  the  recovery  against  the  vendee  is 
conclusive  evidence,  as  to  the  vendor,  of  the  superior  title  of  the 
recoveror.  Garland.v.  Goodloe,  2  1  lay.,  351,  (537).  (Overruled, 
see  Martin  v.  Couies,  2  Dev.  and  Hat',  101.) 

5.  A  record  of  a  recovery  in  ejectment  is  not  evidence,  in  an 
action  by  the  purchaser  against  the  vendor  on  a  warranty,  of  the 
superior  title  of  the  lessor  of  the  plaintiff.  Pearse  v.  Templetorf, 
2  Hay.,  379,  (578.)  S.  P.,  Martin  v.  Gowks,  2  Dev.  and  Bat.,  101. 

6.  In  an  action  by  a  father  for  the  seduction  of  his  daughter, 
her  examination,  taken  under  the  bastardy  act,  is  not  admissible 
in  evidence  against  the  defendant  to  prove  the  fact.  J\h  Far- 
land  v.  Shaw,  2  Car.,  L.  E.,  102,  (200.) 

7.  The  return  of  a  sheriff  is  prima  facie  only,  and  not  conclu- 
sive evidence  against  his  sureties.  State  Bank  v.  Twitty,  2 
Hawks,  5. 

8.  The  record  of  a  recovery  against  a  guardian  is  not.  evidence 
against  his  sureties,  to  subject  thein  upon  the  guardian  bond, 
for  the  default  of  their  principal.  Justices  of  Cumberland  v. 
Bowell,  4  Hawks,  34 


EVIDENCE.— XVII.  483 

9.  The  record  of  a  recovery  by  the  creditor  of  an  intestate, 
against  his  administrator,  is  not  evidence  in  a  suit  by  the  cred- 
itor against  the  sureties  of  the  administrator.  Chairman  v 
Clark,  4  Hawks,  43. 

10.  In  an  action  on  a  justice's  judgment,  it  may  be  proved 
that  it  was  rendered  by  the  justice  while  he  was  in  another 
county,  and  the  justice  himself  is  competent  to  prove  this  fact 
Hamilton ■  v.   Wright,  4  Hawks,  283. 

11.  A  judgment  obtained  against  a  deceased  person  during 
his  lite  tune,  and  another  judgment  obtained  thereon  against 
his  administrator  after  his  death,  is.  both  as  to  the  administra- 
tor and  his  sureties,  evidence  of  a  debt  due  by  his  intestate:  but 
it  is  not  evidence  against  the  sureties  that  the'  administrator  has, 
or  had,  assets  to  discharge  it.  But  if  the  administrator  have  re- 
turned an  inventory,  that  is  prima  facie  evidence  against  the 
sureties  of  assets  to  the  amount  therein  set  forth.  Arm-Mead  v 
Harrarnond,  4  Hawks.  339. 

12.  The  reei  ad  of  a  conviction  of  a  slave  is  not  evidence  against 
the  master,  though  notified  to  defend  him,  unless  ex  necessitate, 
when  he  is  charged  as  an  accessory  to  his  slave.  Nelson  v. 
Evans,  1  Dev.,  !». 

13.  A'plat,  made  on  an  order  of  survey  in  one  cause,  is  not 
evidence  in  the  trial  of  another  suit  between  different  parties. 
Simpson  v.  Blount,  3  Dev.,  ,">4. 

14.  A  witness,  who  is  offered  to  prove  what  was  sworn  to  on 
a  former  trial  between  the  same  parties  by  a  person  who  is  dead, 
must  give  the  substance  of  the  testimony,  and  not  its  effect.  Ball 
letnger  v.  linn, is.  ;;  Dev.,  460. 

15.  The  record  of  a  judgment  against  an  administrator  is  not 
prima  f,"i<  evidence  of  assets  in  the  hands  of  the  administrator, 
in  a  suit,  brought  by  the  plaintiff  in  the  original  suit,  on  the  ad- 
ministration bond  against  the  administrator  and  his  sureties 
Vanhook  v.  Bamett,  4  Dev.,  2<i8. 

16.  A  witness  will  not  be  admitted  to  prove  what  a  deceased 
witness  swore  to  on  a  former  trial,  unless  he  can  state  substan- 
tially all  the  testimony  of  such  deceased  witness.  Ingram  v 
Wdtkins,  1  Dev.  and  Bat.,  442. 

17.  A  judgment  is  conclusive  between  parties  and  privies,  as 
to  those  facts  only  which  it  directly  establishes,  but  does  'not 
tend  to  prove  those  which  may  be  inferred  from  it.  As  a  judg- 
ment in  trespass  quare  clausum  /regit,  unless  entered  upon  the 
plea'  of  liberum  temementum,  is  not  even  admissible  in  another 
action  between  the  same  parties,  or  their  privies,  to  prove  title 
So  thelocus  in  quo.     Bennett  \:  II, hues,  1  Dev,  and  Bat,  486. 

18.  According  to  the  English  rule,  a  vendee  under  the  sheriff, 
svhen  a  stranger  to  the  suit  in  which  the  execution  issues,  is  not 
obliged  to  show  a  judgment,  but  only  an  execution;  but  if  the 
sendee  be  the  plaintiff  in  the  suit,  he  must  also  show  a  judgment. 


484  EVIDENCE.— XVII. 

But,  in  this  State,  a  purchaser  at  an  execution  sale  must  show  a 
judgment  as  well  as  an  execution;  and  if  the  execution  be  not 
warranted  by  the  judgment,  the  sale  will  not  avail  to  pass  the 
title,  though  it  will  protect  the  officer.  Dobson  v.  Murphy,  1  Dev. 
and  Bat.,  580.  (The  rule  in  this  State  has  been  altered  by  the 
act  of  1848,  ch.  5.",.  Revised  Code  ch.  44,  sec.  13.) 

lit.  Every  thing,  which  is  stated  in  a  record  as  a  fact,  is  to  be 
taken  as  such,  because  the  law  imposes  entire  confidence  in  the 
integrity  of  the  court;  but  where  the  record  only  states  the 
evidence,  without  any  judgment  of  the  court  ascertaining  the 
fact  sought  to  be  established  by  it,  no  other  court  can  draw  the 
inference  of  fact  from  such  evidence,  and  act  upon  it  as  tact. 
State  v.  Ephraim,  2  Dev.  ami  Bat,  l(i2. 

20.  Evidence  of  what  a  witness  swore  to,  in  another  and  differ- 
e.nt  suit,  is  inadmissible.  MeMorine  v.  Storey,  4  Dev.  and  Bat., 
L89. 

21.  The  records  '<i'  the  proceedings  against  a  sheriff,  for  an 
amercement  imposed  upon  him,  are  not  evidence  against  his 
sureties  to  prove  his  default,  but  they  are  admissible  against 
them  to  prove  the  fact  of  the  existence  of  the  amercement  itself. 
Governor  v.  Monifort,  1  I  red.,  155.  (It  seems  that  they  would  be 
evidence  now  of  the  default  of  the  sheriff,  see  le\  ised  (.'ode,  ch. 
44,  sec.  10.) 

22.  A  verdict  in  an  action  of  detinue  against  the  plaintiff,  on 
a  plea  ofnon  detinet,  is  not  sufficient  evidence  in  another  suit,  to 
show  thai  the  plaintiff  had  not  title  to  the  thing  demanded. 
iJong  v.  Baugas,  2  I  red.,  290. 

23.  If,  in  such  a,  case,  parol  evidence  can  be  introduced  to  show 
the  grounds  on  which  the  verdict  was  given,  this  evidence  must, 
prove  conclusively  that  the  jury  could  have  found  their  verdict 
upon  no  other  -round  than  want  of  title  in  the  plaintiff.     Ibid. 

24.  In  this  State,  a  decree  in  favor  of  the  next  of  kin,  on  a 
bill  in  equity  or  petition  against  an  administrator,  is  not  admis- 
sible evidence  for  the  next  of  kin,  in  a  suit  brought  by  these  upon 
the  administration  bond  against  the  administrator  ami  his  sure- 
ties. Nor  can  a.  decree  in  favor  of  the  administrator,  on  such  a 
bill  or  petitionee  given  in  evidence  by  him  or  his  sureties  in 
such  an  action  i<w  the  bond     Governor  v.  Carter,  .'>  lied.,  338. 

25.  Where  one  was  employed,  under  a  promise  of  indemnity, 
to  do  an  act  which  turned  out  to  be  a  trespass  upon  another's 
property,  and  the  employer  and  the  persor  employed  were  both 
sued,  but  the  jury  found  the  former  not  guilty,  and  assessed 
damages  only  against  the  latter;  it  /fas  h<i<l  that  this  verdict  did 
not  conclude  the  parson  employed,  in  a  suit  by  him  on  the  pro- 
mise of  indemnity,  from  showing  the  true  state  of  the  facts  and 
the  liability  of  the  defendant,     Ives  v.  Jones,  '■'>  in  d..  538. 

26.  Where,  on  a  contract  for  the  sale  of  a  horse,  the  vendor  was 
to  retain  the  title  until  the  purchase  money  should  be  paid,  and 


EVIDENCE.— XVII.  485 

the  vendee  gave  his  note  for  the  price  and  took  possession  of  the 
horse,  it  was  hid  to  be  competent  for  the  vendor,  in  an  action  to 
recover  the  horse  from  one  claiming  under  the  vendee,  to  show 
a  judgment  on  the  vendee's  note,  and  an  execution  thereon  with 
a  return  of  nulla  bona,  in  order  to  show  that  the  price  had  not 
been  paid.     Gaithcr  v.  Teague,  4  Ired.,  b'5. 

27.  Where,  upon  the  trial  of  a  warrant  before  a  justice,  upon 
a  bond  of  $10,  he  entered  as  his  judgment  "warrant  dismissed, 
and  judgment  for  the  officer  for  one  dollar;"  and  it  was  proved, 
in  the  trial  of  a  subsequent  suit  for  the  same  bond,  that  the 
merits  of  the  case  were  examined  by  the  justice  who  tried  the 
lirst  warrant;  it  mis  held  that  this  would  be  a  bar  to  the  subse- 
quent suit,  unless  tlie  plaintiff  could  clearly  show  that  the  jus- 
tice only  inti  nded  to  entera  non-suit  Masseij  v.  Lemon,  5  Ired.. 
557. 

28.  The  testimony  of  a  witness  on  a  former  trial,  where  the 
present  plaintiff  and  defendant  were  not  parties,  cannot  be  given 
in  evidence,  though  that  testimony  was  against  his  own  interest. 
Harper  v.  Burroic,  6  [red.,  30. 

29.  A  judgment  of  an  amercement  against  a  sheriff  is  not 
conclusive  against  the  sureties  on  his  bond;  and  they  may  show 
that  the  judgment  was  either  fraudulently  or  improperly  obtain- 
ed against  their  principal.     State  v.  Woodside,  7  Ired..  296. 

30.  In  a  controversy  about  boundary,  the  plaintiff  may  give 
in  evidence  a  recovery  in  an  ejectmeni  suit,  twenty-live  years 
ago,  by  one  under  whom  the  plaintiff  claims  against  the  defend- 
ant, and  the  subsequent  abandonment  by  the  defendant  of  the 
land  now  claimed  by  the  plaintiff  Gilchrist  v.  McLaughlin,  7 
Ired.,  310. 

31.  A  and  B  being  infants,  their  mother,  who  was  adminis- 
tratrix of  their  deceased  father,  rented  out  the  land  of  which 
they  were  tenants  in  common,  to  I),  who  entered  into  possession 
of  it.  The  infants  afterwards  sued  their  mother  in  equity  and 
obtained  a  decree  against  her,  in  which  she  was  charged  with  the 
rent  of  their  land,  but  it  did  not  appear  that  the  decree  had  been 
satisfied.;  it  was  held  that  D,  not  being  a  party  or  privy  to  the 
suit  in  equity,  could  not  avail  himself  of  the  proceedings  in  it 
to  prevent  his  being  sued  as  a  trespasser.  Hardy  v.  Williams, 
11  Ired.,  499. 

32.  In  trespass  for  false  imprisonment,  the  plaintiff  proved 
that,  under  a  claim  of  right,  he  entered  a  held  cultivated  and  oc- 
cupied by  one  of  the  defendants,  and  gathered  and  took  away 
corn  there  growing,  when  upon  he  was  arrested  for  petty  larceny 
by  the  defendant  and  committed  to  jail.  The  defendants  then 
offered  to  prove,  in  mitigation  of  damages,  that  the  plaintiff's 
land  had  been  sold  by  the  sheriff,  under  an  execution  against 
the  plaintiff  himself;  and  it  was   held  that,  under  the    circum- 


486  EVIDENCE.— XVII.-XVIII. 

stances,  the  evidence  was  competent,  and  should  have  been  re- 
ceived.    Sawyer  v.  Jarvis,  13  Ired.,  179. 

33.  Although  a  vend.  expo,  is  not  a  part  of  the  record,  so  as 
to  carry  absolute  verity  with  it,  yet  it  is  the  authority  under 
which  an  officer  acts  and  his  only  authority  to  sell,  and  is  there- 
fore a  necessary  part  of  the  evidence,  to  support  the  title  of  the 
purchaser  at  a  sale  under  such  execution.  Simpson  v.  Hiatt,  13 
Ired.,  470. 

34.  So,  the  return  of  a  sheriff  on  such  vend,  expo.,  being  an  of- 
ficial act,  is  also  competent  evidence.  But  the  evidence,  as  in 
the  case  of  the  sheriff's  deed,  is  onlj  prima  facie,  and  may  be  re- 
hutted  by  other  evidence.     Ibid. 

35.  A  sheriff's  return  upon  a"n  execution  is  prima  facie  evi- 
dence of  a  sale,  and  also  as  to  who  was  the  purchaser.  Simpson 
v.  Hiatt,  13  Ired.,  473. 

36.  The  recitals  in  a  sheriff's  deed,  of  an  execution,  levy  and 
sale,  are  prima  facie  evidence,  in  another  suit,  of  those  facts. 
Hardin  v.  Cheek,  3  Jones,  135. 

37.  In  an  action  by  petition  to  recover  damages  for  the  over- 
flow of  land  by  ponding  water,  it  is  not  competent  to  use  the 
record  of  a  former  proceeding,  wherein  damages  were  recovered 
for  the  same  thing,  either  as  an  estoppel,  or  to  establish  the 
wrong  in  any  way.  In  such  case,  the  jury  must  pass  upon  the 
whole  matter,  in  as  full  and  free  a  manner  as  in  the  former  pro- 
ceeding.    BurweH  v.  Cannaday,  3  Jones,  165. 

38.  In  an  action  against  an  administrator  on  his  administra- 
tion bond,  for  the  non-payment  of  a  judgment  previously  ren- 
dered against  him.  such  judgment  is  conclusive  evidence  against 
him,  both  as  to  the  debt  and  the  existence  of  assets.  Bond  v. 
Billups,  <s  Jones,  42.'i. 

See  (Evidence — Admissions,  declarations  and  acts  of  parties, 
privies  and  others,  96.)  (Warranty — Of  the  action  upon  a  war- 
ranty, and  the  evidence  to  support  it,  2-3-8-18.)  (Accessory, 
4-5-6-7.) 

XVIII.    COPIES  OF  DEEDS    AND    OTHER    INSTRUMENTS WHEN    ADMITTED    AND 

HOW  TROVED. 

4.  Where  the  party  has  lost  his  deed,  or  is  out  of  possession 
thereof,  he  himself,  and  no  other  person  for  him,  must  make 
oath  of  the  loss,  before  he  shall  be  permitted  to  read  a  copy. 
Blantm  v.  MiUer,  1  Hay.,  4,  (7,)  S.  P.  Park  v.  Cochran,  Ibid, 
410,  (473).  Nicholson  v.  HiUiard,  2  Murph,  270,  S.  C.  1  Car. 
Law  Repos.,  253,  (24.) 

2.  If  a  deed,  whose  former  existence  is  proved,  be  lost,  a  copy 
may  be  given  in  evidence,  and  if  there  be  no  copy,  parol  evi- 
dence of  its  contents  may  be  given.  Baker  v.  Webb,  1  Hay., 
43,  (55.) 


EVIDENCE.— XVIII.  487 

3.  Plaintiff  may  prove  the  loss  of  his  deed  by  his  own  oath ; 
but  not  that  the  plat  offered  in  support  of  his  title  was  part  of 
the  deed  lost.      WrigU  v.  Bogan,  1  Hay.,  17(1,  (203.) 

4.  The  reading  of  a  copy,  where  the  original  is  lost,  applies 
only  where  the  owner  of  the  writing  proves  it  to  be  lost.  SmaU- 
wocd  .v  Mitchell,  2  Hay.,  145,  (318.) 

5.  The  copy  of  a  writing  in  the  hands  of  the  adverse  party 
cannot  be  read,  unless  notice  has  been  first  given  to  produee  the 
original.     Ibid. 

6.  The  register's  certificate  of  instruments,  not  required  by 
law  to  1m-  recorded,  is  of  no  validity.  Garland  v.  Goodlbe,  2 
Hay,  351,  (537,)  S.  P.      Yarbrougl  v.  Beard,  Tay.,  25,  (19.) 

7.  The  loss  of  a'bill  of  sale  may  be  proved  by  the  plaintiff;  and, 
if  there  be  no  copy,  parol  evidence  of  its  contents  may  be  given. 
2  Hay.  351,  (537') 

S.  The  copy  of  a  grant  from  the  Secretary  of  State's  office. 
which,  does  not  appear  to  have  been  signed  by  the  Governor, 
cannot  be  given  as  evidence  of  the  grant;  but  it  may  be,  as  a 
circumstance  that  the  grant  once  existed.  Blount  v.  Benbury, 
2  Hay,  35;',.  (542.) 

'.).  Where  an  original  deed  is  destroyed  with  the  approbation 
ef  the  party,  he  shall  not  bo  permitted  to  give  a  copy  in  evi- 
dence.    Bryan  v.  Pursuits.  1  Murph.,  152. 

Kt.  Tin-  certified  copy  of  a  bill  of  sale  for  a  slave  from  the 
register's  books  cannot  be  admitted,  unless  the  absence  of  the 
original  is  sufficiently  accounted  for,  nor,  it  there  be  a  sub- 
scribing witness,  unless  he  be  produced  at  the  trial.  Cadtou  v. 
Bhodworth,  1  Murph.,  42  b 

11.  A  person  entitled  to  the  custody  of  a  deed  must  produce 
it  in  the  deduction  of  his  title:  but  if  he  swear  to  its  loss  or  de- 
struction, he  may  produce  a  copy,  or  even  interior  evidence  of 
its  contents.  Nicholson  v.  Billiard,  2  Murph.  270,  S.  C,  1  Car. 
L.  I!..  253,  (24.) 

12.  When  it  is  clearly  proved,  by  evidence,  other  than  the 
party's  own  oath,  that  a  writing  is  lost  by  time  or  accident,  parol 
evidence  of  its  contents  is  admissible,  but  otherwise  not.  Mc- 
Farland  v.  Patterson,  2  Car.  L.  R.,  618,  (421.) 

13.  Before  parol  evidence  can  be  admitted  of  the  contents  of  a 
paper  alleged  to  be  lost,  such  loss  must  be  satisfactorily  shown; 
and  the  declarations  of  tin-  administrator  of  the  person  in  whose 
custody  it  was,  that  he  could  not  find  it,  is  not  sufficient  proof 
of  the  loss,  when  he  is  living  and  his  testimony  can  be  procured. 
Governor  v.  Barkley,  4  Hawks,  20. 

14.  Secondary  evidence  of  papers,  in  possession  of  a  party  to  a 
cause,  is  admitted,  after  notice  to  produee  the  originals,  not  be- 
cause the  originals  are  not  produced,  but  because  it  is  the  best 
evidence  in  the  power  of  the  adverse  party.  The  principle  ex- 
tends to  criminal  as  well  as  civil  cases;  and  the  rule,  that  no  man 


488  EVIDENCE.— XVIII. 

is  bound  to  criminate  himself,  only  protects  the  accused  in  tho 
possession  of  the  originals,  and  prevents  him  from  being  com- 
pelled to  produce  them.  If,  after  notice,  he  objects  to  produce 
them,  the  State  lias  a  right  to  prove  their  contents.  State  v. 
Kimbrough,  2  Dev.,  431. 

15.  A  notice  to  produce  papers  on  the  trial,  to  be  had  "  this 
•day,"  is  not  confined  to  a  trial  on  that  day,  but  extends  to  a 
trial  at  any  subsequent  term.     Ibid. 

16.  To  let  in  secondary  evidence,  the  best  evidence  of  the  loss 
of  the  original  document,  that  the  nature  of  the  case  admits  of, 
must  be  produced.     Dumas  v.  Powell,  •">  Dev.,  108. 

17.  A  registered  copy  of  a  deed  cannot  be  received  as  evidence 
of  title,  without  accounting  for  the  absence  o£the  original.  But 
this  may  be  done  by  the  affidavit  of  the  party,  proving  the  less 
of  the  deed.  Smith  v.  Wilson,  1  Dev.  and  Bat,  40.  (Copies  of 
registered  deeds  are  now  in  all  oases  admissible  in  evidence, 
unless  by  a  rule  of  court  the  originals  are  required.  See  act  of 
1846,  eh.  68,  sec.  1,  Revised  Code,  ch.  •">?,  see.  lii  ) 

18.  When  a  witness  is  called  upon  to  prove  tacts  originally 
entrusted  to  memory,  he  may  use  a  written  memorandum  which 
he  had  formerly  made,  in  order  to  refresh  his  memory;  but  if, 
after  such  help,  lie  cannot  recollect  a  particular  fact,  the  writing 
is  not  admissible  to  supply  it.  This  rule,  however,  dees  nut  ap- 
ply to  written  instruments  or  documents;  for  where  such  are 
lost  or  destroyed  so  that  they  cannot  be  produced,  a  copy  of  them, 
verified  by  the  copyist  to  have  been  taken  from  the  original,  is 
admissible,  even  in  preference  to  a.  professed  lull  recollection  of 
their  contents  by  the  witness,  because  such  a  copy  is  less  liable 
to  error  than  the  memory  of  the  witness.  And  so,  for  the  same, 
reason,  an  a  list  i-.iet  of  1  he  original,  taken  and  verified  inthesam^ 
way,  is  admissible,  independent  of  the  recollection  of  the  witness, 

■and  even  in  preference  to  it,  as  to  the  facts  which  it  contains. 
Kello  v.  Maget,  1  Dev.  and  Cat,  414. 

Hi.  A  sworn  copy  &i  a  letter  cannot  be  received  without  ac- 
counting for  the  original.  Murphey  v.  McNeil,  -  Dev.  and  Hat.. 
244. 

20.  As  patents  or  grants  from  the  State  are  recorded  in  the 
■office  of  the  Secretary  of  State,  copies  of  them  obtained  from  that 
office  may  be  given  in  evidence,  without  accounting  for-1  tho 
originals,  by  all  persons  except  the  patentees  and  grantees  them- 
selves, or  those  claiming  under  them,  who  would  be  entitled  to 
the  possession  of  the  originals.  Candler  v.  Lunsford,  4  Dev.  and 
Bat.,  18.     (See  Revised  Code,  ch.  37,  sec.  Hi.) 

21.  It  is  not  sufficient  evidence  of  the  loss  of  an  execution, 
which  had  been  in  the  hands  of  a  constable,  so  as  to  let  in  secon- 
dary evidence,  to  show  that  the  constable  had  removed  to  an- 
other State,  and  had  left  his  papers  generally  with  an  agent,  who 


EVIDENCE.— XVIII.  489 

testified  that  the  execution  was  not  to  be  found  among  the  pa- 
pers so  left.     Bearer  v.  Rice,  2  Ired.,  280. 

22.  Where  the  clerk's  office  had  been  burnt  and  the  records 
destroyed,  and  it  was  proposed  to  estahli  h  tUi  assessment  of  a 
particular  lot  for  a  certain  year,  and  the  sheriff  was  offered  as  a 
witness  to  prove  that  he  had  seen  either  in  the  clerk's  office  the 
original  list,  or  in  his  predecessor's  hands  an  authenticated  ropy 
of  the  tax  list,  and  to  show  its  contents,  it  was  fold  that,  it  not 
appearing  that  the  said  copy  was  losl  or  destroyed,  the  evidence 
was  incompetent,  and  could  net  be  left  to  the  jury.  Kelly  v. 
Craig,  5  [red.,  129. 

■2'.).  <  )n  the  trial  of  an  issue,  il  was  incumbent  on  the  defendant 
to  show  that  he  had  given  to  his  father  a  valuable  consideration 
for  a  slave,  and  he  produced  a  hill  of  sale,  which  he  proved  by 
the  sul  iscribing  witness,  and  it.  expressed  a  consideration  of  $300. 
The  plaintiff'-s counsel  asked  the  witness  ifhe  sawanymoney  paid, 
and  the  witness  replie  1  that  he  did  not,  but  that  he  saw  a  bond 
delivered  by  the  defendant  to  his  father,  and  being  asked  by  the 
same  counsel  what  bond,  he  replied  "the  defendant's  bond  to 
maintain  his  father  and  mother  during  their  lives."  //  was  held 
that  this  examination,  on  thi  the  plaintiff,  did  n  it  dis- 

pense with  the  necessity  of  the  defendant's  producing  the  bond, 
or  showing  that  he  had  used  the  proper  means  to  procure  its 
production,  and  then  proving  its  contents.  Walters  v.  }\'alt>-r^ 
5  [red.,  435. 

24.  In  the  trial  of  an  action  for  a  slave,  a  party  was  permitted 
to  prove  by  parol  the  contents  of  a  bill  i  under  which  he 

had  claimed  and  held  possession  of  the  slave  for  more  than  thirty 
years,  the  bill  of  sale  having  been  destroyed  by  the  burning  of 
the  Register's  office.    iCfathingsv.   Wi  ,  5  [red,  487. 

2">.  A  purchaser  of  land  at  a  sheriff's  sale  is  not  bound  to  pro- 
duce the  original  deeds,  under  which  the  person,  whose  land 
I,  claimed  title;  and,  not  being  entitled  to  the  custody  of 
the  originals,  he  may  read  copies  in  evidence.  Irwin  v.  Cox,  l> 
Ired.,  521. 

26.  Where  the  plaintiff  alleged,  as  a  proof  of  thi 

her  purchase,  that  she  had  given  a  valuable  consideration  for  a 
slave,  and  introduced  a  witness  to  prove  that  she  had  conveyed 
to  him  a  tract  of  land  as  the  consideration  for  the  purchase  of 
the  slave,  it  was  hdd  that  the  deed  for  the  land  must  be  pro- 
duced, as  tin.-  best  evidence,  and  the  deed  being  in  existence. 
though  in  another  State.,  parol  evidence  of  its  execution  and 
contents  could  not  be  received.  Davidson  v.  Norment,  5  Ired.. 
555. 

27.  It  is  well  settled  that  the  loss  or  destruction  of  a  convey- 
ance may  be  proved  by  a  party  to  the  suit,  as  a  ground  for  let- 
ting in,  to  the  jury,  the  secondary  evidence  of  a  copy,  or  other 
inferior  evidence;  but  the  court  never  intended  to  relax  the  gen- 


490  EVIDENCE.— XVIII. 

eral  rule,  that  the  best  evidence  must  be  produced,  beyond  the 
plain  necessity  of  the  case,  or  where  it  did  not  clearly  appear 
that  the  higher  evidence  was  not  accessible  to  the  party.  Har- 
per v.  Hancock,  6  Ireil.,  124. 

28.  The  loss  of  a  deed,  or  other  conveyance,  must  be  proved 
by  the  person  in  whose  possession  it  is  presumed  to  be:  but  if  a 
party,  who  is  prima  facie  presumed  to  have  possession  of  the 
original  deeds  of  his  grantor,  because  he  bought  with  special 
warranty,  swear  that  he  never  did  have  the  originals,  his  evi- 
dence is  not  sufficient  to  establish  the  loss,  as  the  presumption 
is,  in  that  case,  that  the  grantor  has  them,  until  rebutted  by 
such  grantor's  oath.     Ibid. 

2D.  Grants  from  the  sovereign,  when  enrolled  in  the  office 
from  which  they  emanate,  are  there  records,  and  copies  of  them 
may  be  used  in  evidence  by  all  persons,  except  those  who  would 
be  entitled  to  the  originals.     Clarkev.  Diggs,  <>  [red.,  159. 

30.  On  a  suit  for  the  penalty  for  trading  with  a  slave,  when 
it  was  proved  that  the  defendant  offered  to  show  the  plaintiff 
his  "barter  book"  in  order  to  convince  him  that  he  had  paid 
nothing  to  the  negro,  who  had  delivered  the  articles  to  his  agent, 
it  was  /tfit/  not  to  be  competent  for  the  plaintiff  on  the  trial,  to 
prove  by  the  witness,  before  whom  this  declaration  was  made, 
in  order  to  show  the  time  when'  the  transaction  tool;  place,  what 
was  the  time  of  trading,  as  appearedon  the  book;  for  notice  to 
produce  the  book  should  have  been  proved,  before  such  evidence 
was  admissible.      Whitley  v.  Daniels,  6  [red.,  480. 

31.  When  a  witness  in  giving  his  deposition  refers  to  a  note, 
he  may,  by  way  of  identifying  it,  recite  the  contents  of  it,  and 
the  deposition  will  be  admitted  on  the  trial,  provided  the  origi- 
nal note  is  then  produced.     Jones  y.  Herndbn,  7  [red.,  79. 

32.  The  copy  of  a  graut  from  the  register's  office  is  good  evi- 
dence, where  the  production  of  the  original  is,  from  any  cause. 
dispensed  with.     Osborne  v.  Bal/cw,  7  Ired.,  415. 

33.  'fhe  presumption  is  that  a  person,  who  is  entitled  to  a  deed, 
has  it  in  his  possession,  until  the  contrary  is  proved;  and  that 
may  be  shown  by  the  affidavit  of  the  person  so  entitled,  in  order 
to  let  in  a  copy  or  the  contents  of  the  deed.  Wylie  v.  Smither- 
man,  <s  [red.,  236. 

34.  In  order  to  authorize  one,  entitled  to  the  custody  of  the 
deed  under  which  he  claims,  to  introduce  a  copy,  it  should  ap- 
pear that  every  place,  which  the  law  considers  a  proper 
depository,  should  be  examined,  and  every  person  brought  for- 
ward, who  by  law  had  been  entitled  to  the  possession  of  the 
deed.  Therefore,  where  a  party,  who  was  entitled  to  the  posses- 
sion of  deeds,  merely  states  on  affidavit  "  that  he  did  not  know 
what  had  become  of  the  originals,  and  that  he  had  made  enquiry 
for  them,  and  was  unable  to  obtain   them,"  it   was  held  to  be  in- 


EVIDENCE.— XVIII.  491 

sufficient  to  entitle  him  to  introduce  copies.  Harven  v.  Hunter. 
8  I  red.,  464. 

35.  To  entitle  a  party  to  give  evidence  of  the  contents  of  a 
paper,  which,  it  is  alleged,  has  been  lost,  it  is  sufficient  to  show, 
that  there  is  no  reasonable  probability  that  any  thing  has  been 
suppressed.  Tims,  where  a  slave  was  taken  into  the  defendant's 
stage,  on  Ins  way  from  Granville  to  McDowell  county,  and  after- 
wards absconded,  it  was  competent  fur  the  defendant  to  show 
by  parol  testimony,  that  the  slave  had  a.  written  permission  to 
travel  from  Granville  to  McDowell  alone,  he  being  on  the  ordi- 
nary road  between  the  two  counties,  when  he  was  received  into 
the  defendant's  stage.     Robards  v.  McLean,  8  Ired..  522. 

3(5.  "Where  a  party  offered  in  evidence  the  copy  of  a  deea,  for 
the  purpose  of  showing  the  receipt  of  money,  and  it  a}. [.eared 
that  the  deed  had  not  been  proved,  or  acknowledged,  and  reg- 
istered by  the  supposed  bargainor,  but  notice  had  been  given  to 
produce  the  original,  it  Was  held  that  the  copy  was  not  admissi- 
ble for  any  purpose,  as  the  original  would  not  he,  until  properly 
proved  and  registered.     Lambert  v.    Lambert,  11  Ired.,  162. 

37.  Where  notice  has  not  been  given  to  produce  a  bill  of  sale 
or  other  instrument  of  writing,  or  where  its  absence  is  not  satis- 
factorily accounted  for,  it  is  not  competent  to  introduce,  as  evi- 
dence of  the  execution  or  contents  of  tht  instrument,  the  oral 
admissions  or  declarations  of  the  alleged  maker.  ThreadgiU  v. 
White,    11  Ired.,  .V.i  1. 

38.  A  party  cannot  introduce  secondary  evidence  of  the  con- 
tents ot  a  written  instrument,  merely  upon  showing  that  the 
instrument,  though  in  existence,  is  in  another  State,      Ibid. 

39.  Under  the  act  of  1846,  a  party  may  read  a  registered  copy 
of  a  deed  to  the  otlter  party,  who  lias  it  in  possession,  without 
notice  to  produce  the  original,  in  the  same  manner  as  he  can 
pead  the  copy  of  b  deed  to  himself.  Gar  son  v.  Smart.  12  Ired., 
369.     (See  Rev.  Code,  chap.  37,  sec.  16.) 

40.  For  the  purpose  of  letting  in  secondary  evidence  of  the 
contents  of  an  instrument,  the  party  may  prove  its  loss  by  his 
own  affidavit,  unless  it  be  a  negotiable  paper.  McRae  v.  Morri- 
son, 13  Ired.,  46. 

41.  There  is  no  law  requiring  leases  for  years  to  be  registered, 
and  therefore  a  copy  from  the  register's  books  is  not  evidence,  as 

in  the  case  of    deeds  for    freehold  estates.       liuriii'tt  V.    Thuni^sim. 

13  Ired.,  379.  (Such  leases  are  now  required  to  be  registered. 
See  Rev.  Code,  chap.  37,  sec.  26.) 

42.  The  "  registry,"  or  copy  of  a  record,  of  a  bond  to  make  ti- 
tle to  land,  executed  by  a  deceased  person,  under  which  a  deed 
has  been  executed  by  his  administrator,  is  within  the  spirit  and 
meaning  of  the  act  of  1846,  ch.  68,  which  is  a  remedial  statute, 
and  such  copy  is  admissible  without  accounting  for  the  absence 


492  EVIDENCE.— XVIII. 

of  the  original.     Bohanan  v.   Shelton,   1   Jones,   370.     (See  Rev. 
Code,  chap.  37,  sec.  16.) 

43.  Where  a  paper  is  proved  to  be  destroyed,  its  contents  may 
be  spoken  of  without  any  notice  to  the  other  side  to  produce  it. 
MoAulay  v.  Earnhart,  1  Jones,  502. 

44.  Where  a  note  was  agreed  to  be  discharged  and  satisfied, 
by  the  acceptance  of  notes  upon  other  persons,  which  were  al- 
leged to  have  been  insolvent,  ami  to  have  been  imposed  upon 
the  plaintiff  by  the  fraudulent  misrepreprese  ntationsof  the  agent 
of  the  maker  ot  the  original  note,  in  a  suit  against  such  agent 
for  the  fraud  it  was  held,  that  a  receipt  given  at  the  time  of  this 
transaction,  against  the  note  agreed  to  be  delivered  up,  ought  to 
be  produced  on  the  trial,  or  its  absence  accounted  for,  before  its 
contents  could  be  given  in  evidence.  Ledbetter  v.  Morris,  1 
Jones.  .">  15. 

4.").  Where  the  action  is  for  the  detention  of  a  written  instru- 
ment, it  is  not  necessary  to  give  notice  to  the  defendant  to  pro- 
duce the  paper  on  the  trial,  previously  to  proving  its  contents, 
as  the  suit  itself  is  sufficient  notice.     Griffin  v.  Black,  2  Jones,  1. 

46.  Where  notice  was  given  to  a  prisoner  in  close'  custody, 
four  days  before  the  trial,  to  produce  a  certain  paper,  which  was 
traced  to  his  possession,  his  residence  being  only  four  and  a  half 
miles  distant  when  he  received  the  notice,  it  was  held  that  this 
was  sufficient  to  authorize  the  admission  of  secondary  proof  of 
the  paper.     State  v.  Hester,  2  Jones,  83. 

47.  To  supply  the  loss  of  a  deed  under  the  act  of  183G,  cli.  68, 
in  relation  to  the  destruction  ot  the  records  of  Hertford  county. 
extended  by  the  act  of  1*44,  ch.  §3,  to  Montgomery  county, 
proof  that  a  deed  had  been  seen  by  several  persons,  but  they 
could  not  say  what  were  the  boundaries  of  the  land  mentioned 
in  it,  is  not  sufficient  far  the  purpose  intended.  Ward  v.  Hat- 
ley,  2  Jones,  88. 

4.S.  The  word  ••  copy  "  generally  presupposes  an  original,  but 
not  always.  Thus  where  a  telegraphic  operator  deposed  that  he 
sent  a  "copy"  of  a  dispatch  by  the  telegraph,  it  is  not  to  be  as- 
sumed without  proof,  that  the  dispatch  sent  was  from  a  written 
original  in  his  possession,  and  it  was  error  in  the  court  to  reject 
the  deposition,  because  no  original  had  been  produced  or  ac- 
counted for.     Banks  v.  Richardson,  2  Jones,  109. 

41).  The  contents  of  a  paper  writing  cannot  be  proved  by  pa- 
rol, unless  notice  has  been  given  to  the  adverse  party,  who  has 
it  in  possession,  to  produce  it  on  the  trial;  and  this  rule  applies 
to  the  ease  of  an  original  will,  which  was  proved  and  recorded 
according  to  law,  but  the  record  of  which  was  destroyed  by  the 
burning  of  the  court  house  where  it  was  deposited.  Mwrchison 
v.  Mcleod,  2  Jones,  239. 

50.  When  a  deed  is  lost,  and  the  record  of  its  probate  de- 
stroyed, there  is  no  statutory  provision  for  proving  that  it  had 


EVIDENCE.— XVIIL  493 

been  duly  acknowledged  or  proved  before  its  registration;  and  in 
such  case  the  proof  must  be  made  according  to  those  rules,  where 
there  was  proof  that  the  deed  had  been  registered,  and  the  reg- 
ister testified  that  he  had  held  the  office frem  the  time  when  the 
deed  was  made  up  to  the  time  of  the  trial,  and  that  during  that 
period  no  deed  had  been  registered  which  had  not  been  duly 
proved,  it  was  held  that  the  proof  was  sufficient  to  authorize  the 
presumption  that  the  deed  had  been  duly  proved  before  regis- 
tration, and.  therefore,  a  copy  of  it  was  admissible  in  evidence. 
freeman  v.  Hatley,  3  Jones,  115. 

51.  Parol  evidence  of  the  contents  of  adeed  conveying  a  slaved 
is  not  admissible,  if  it  were  not  proved  and  registered,  although 
full  proof  has  been  made  of  the  loss  of  the  instrument,  and  proper 
notice  given  of  the  intention  to  offer  secondary  evidi  nee  of  its 
content^.  Tooley  v.  Lucas,  3  Jones,  146.  (Sic  Revised  Code 
ch.  37,  sec.  19.) 

52.  A  copy  of  a  will,  dated  in  174],  and  found  in  the  office  of 
the  Secretary  of  State,  having  three  subscribing  witnesses,  and 
being  otherwise  in  proper  form  to  pass  land,  is  admissible  in 
evidence  under  the  act  of  1852,  though  there  is  no  other  evi- 
dence of  its  probate.  Stephens  v.  French,  3  Jones,  359.  (See 
Revised  Code,  ch.  41,  sec.  12.  But  now  by  the  act  of;  1856.  ch. 
•>2,  such  copy  will  not  be  evidence  unless  a  certificate  of  probate 
appear  on  the  will.) 

53.  In  an  action  of  deceit  on  the  sale  of  a  slave,  the  plaintiff 
must  prove  the  sale:  and  if  that  were  by  a  bill  of  sale,  it  must  be 
produced  and  proved  by  the  subscribing  witness,  or  its  loss  or 
absence  account  d  for  before  its  contents  can  be  shown  Gwvnn 
v.  Setter,  3  Jones,  382.  '     J 

54.  Where  a  written  instrument  went,  into  the  hands  of  a  »er- 
son  who  left  the  State,  and  there  was  no  evidence  that  it  had 
been  lost  or  destroyed,  it  was  held  that  its  contents  could  not  be 
proved,  even  though  a  notice  to  produce  it  had  been  given  to 
the  oppositi    party.     McCracken  v.  McRary,  5  Jems.  399. 

55.  Where  the  written  appointments  of  proxies  to  act  in  the 
meetings  of  the  stockholders  of  an  incorporated  company  had, 
alter  being  used,  been  thrown  aside  as  useless.  /,  ,.,.  /.  ',/  mit  to 
be  necessary  to  \  how  that  search  had  been  made,  preliminary  to 
the  introduction  of  parol  evidence  of  their  contents.  Haywood 
and  Pittsboro  Railroad  Company  v.  Bryan,  6  Jones,  82. 

Where  the  contents  of  a  written  instrument  w<  re  off  red  and 
received,  upon  t  he  assurance  of  the  counsel  offering  them,  that  he 
would  subsequently  show  the  destruction  of  the  instrument, 
which  he  did,  it  was  held  that  the  reception  of  the  evidence  was 
proper.     Sta'e  v.  Bluk,    6  Jones,  510. 

57.  In  a  suit  against  the  guarantor  of  a  note,  the  note  itself 
must  lie  produced  on  the  trial,  or  its  non-produetion  satisfacto- 
rily accounted  for;  and  the  fact  that  a  suit  had  been  brought  on 


494  EVIDENCE-XVIII.-XLX.-XX. 

it  against  the  principal  debtor  in  another  State,  is  no  exception 
to  the  rule;  for  the  note  itself  might,  under  an  order  of  the 
court  in  the  other  State,  have  been  withdrawn  on  leaving  a  copy, 
or  the  refusal  of  such  court  to  make  such  order  would  account 
satisfactorily  for  its  non-production,  so  as  to  allow  of  secondary 
•evidence  of  its  contents.      Casey  v.   fVUUnins,  b'  Jones  578. 

58.  Where  the  question  arose  collaterally  whether  a  certain 
promissory  note  had  been  paid  off  and  discharged,  (7  was  hdd 
that  the  fact  of  payment  might  be  proved  without  the  produc- 
tion of  the  note  itself.     Paije  v.  Einstein,  7  Jours  147. 

59.  The  Rev.  Code,  chap.  37,  sec.  16,  makes  a  certified  copy 
of  a  registered  deed  evidence.  Hughes  v.  ftebnam,  8  Junes  127. 
See  (Evidence — Parol  evidence,  when  admissible  '11. ) 

XIX.    PROOF    OF    OFFICIAL    BONDS. 

1.  Guardian  bonds,  being  taken  by  public  authority,  have  a 
high  character  of  authenticity,  and.  need  not  lie  veretied  by  the 
ordinary  tests  of  truth  applied  to  mere  private  instruments. 
namely,  the  obligation  of  an  oath,  and  the  cross  examination  of 
witnesses;  therefore,  when  the  execution  of  such  bonds,  taken 
from  their  proper  depository  and  lost,  is  denied  by  plea,  it  is  only 
necessary  to  prove  the  existence  of  sue]]  a  bond  tiled  in  the 
court,  and  the  identity  of  the  defendant,  in  order  to  sustain  the 
affirmative  of  the  issue.     Kelfo   v.   Maget,  1  Dev.  and  Bat.,  414. 

2-  A  registered  copy  of  a  clerk's  bond  may  be  read  without 
other  proof,  and  of  course  the  original,  when  proved  ami  regis- 
tered as  the  acts  provides,  may  also  be  rend  at  the  trial  without 
other  proof  of  its  execution.  Short  v.  Currie,  8  Jones  42.  (See 
Key.  Code,  chap.  19,  sec.  9,  and  chap.  37,  sec.  Hi.) 

'J.  It  seems  that,  at  common  law,  official  bonds  were  not  sub- 
jected to  the  same  tests  of  strict  proof,  as  instruments  between 
private  individuals.     Ibid. 

XX.    PROFESSIONAL    BOOKS,    OR    BOOKS    OF    SCIENCE. 

1.  Professional  books,  or  books  of  science  (e.  g.  medical  books) 
are  not  admissible  in  evidence,  though  experts  may  be  asked  for 
their  opinion  and  the  grounds  for  it,  which  maybe  m  some  degree 
founded  on  books,  as  apart  of  their  general  knowledge.  Melviii 
v.  Easley,  1  Jones,  386. 

2.  Where  counsel,  in  his  address  to  the  jury,  referred  to  and 
commented  on  a  book  of  science,  which  he  held  in  his  hand  but 
did  not  read,  as  evidence  in  the  cause,  without  being  interrupted 
by  the  adverse  counsel,  it  /ens  held  that  this  was  no  waver  of  the 
objection  to  the  book,  for  it  was  the  duty  of  the  judge,  in  his 
instructions  to  the  jury,  to  present  the  case  to  them  properly, 
and  to  correct  any  errors  into  which  the  counsel  may  have  fallen, 


EVIDENCE.— XX.-XXI.  495 

and  it  will  be  error  for  him  to  give  the  same  effect  to  the  book 
in  his  charge,  as  if  it  had  been  read  in  evidence  to  the  jury. 
Ibid. 

XXI.    BOOKS    OK    ORIGINAL    ENTRIES,    ACCOUNTS,  RECEIRTS,   ORDERS,  CHECKS, 
WAYBILLS,     AC. 

1.  The  receipt  of  an  attorney  is  admissible  after  his  death,  to 
prove  the  time  when  bonds  were  put  into  his  hands  for  collection. 
Alston  v.  Taylor,  1  Hay..  381,  (439.) 

2.  Proof  of  a  clerk's  handwriting,  in  entries  madein  the  plain- 
tiff's li<  inks,  shall  m>t  be  admitted,  while  the  clerk  is  living,  though 
he  mav  be  absent  from  the  country.  Kennedy  v.  Fairman,  1 
Hay.,  458,  (527.) 

3.  The  log  book  of  a  vessel  may  be  received  as  evidence  of  the 
time  of  her  arrival  at,  and  departure  from,  a  port.  SmaUwood  v. 
Mitch  11,  ■>  Hay..  145,  (318,) 

•i.  An  order  for  money,  sent  to  and  retained  byaperson,  ispre- 
sumptive  evidence  of  themoneybeingpaid  thereon  ;  bul  not  so  of  an 
order  t'<a- the  delivery  of  goods.  Blount  v.  Starkey,Ta.j.,  110,(65,) 
S.  C,  2  Hay..  7."..  (242.) 

5.  The  1 ks  of  account  kept  by  the  Stair  Bank,  of  the  deal- 
ings between  it  and  its  customers,  were  held  not  to  be  evidence 
for  tlie  bank  in  a  suit  between  it  and  its  customers.  State  Bank 
v.  Clark,  1  Hawks.  36. 

6.  Acceptance  and  payment  of  a  check  on  the  bank  isprima 
facie  evidence  that  the  drawer  had  funds  in    the  bank,  and  it  is 

incumbent  on  the  Dank  to  show  that  he  bad  not.     Ibid. 

7.  If  a  party  rely  upon  an  account  produced  for  the  purpose 
of  claiming  a  credit  contained  in  it,  the  account  must  be  taken 
altogether;  the  party  being  at  liberty  to  contradict  or  disprove 
it,  but  if  he  do  not,  it  is  evidence  to  the  jury.  Turner  v.  Child 
1  Dew,  133. 

8.  An  agent,  who  lias  given  a  receipt  for  a  magistrate's  Judg- 
ment, and  collected  the  amount  of  it,  may  [be  subjected  in  an 
action  for  money  had  and  received,  without  tin  plaintiff's  pro- 
duction of  the  judgment  on  the  trial.  Martin  v.  WWams,  1 
Dev.  386. 

9.  A  receipt  for  a  specific  sum  of  money,  which  states  it  to  be 
in  full  of  all  demands,  is  not  conclusive  evidence  that  the  specific 
sum  was  paid,  or  that  it  was  in  full  of  all  demands.  But  such  a 
receipt  is  primafacie  evidence  of  a  settlement  between  the  par- 
ties and  of  a  payment  of  the  balance,  and  it  is  incorrect  to  say 
that  it  is  only  evidence  of  the  sum  mentioned  in  it.  Eeid  v 
Beid,    2  Dev.,  217. 

10.  An  account  stated  in  the  hand-writing  of  the  defendant. 
does  not  estop  him  from  showing  that  the  settlement  only  ascer- 
tained the  items  of  the  account,  and  leaves  him  at  liberty  to  con- 


496  EVIDENCE.— XXI.-XXII. 

test  the  price  at  which  they  were    charged.     Moore  v.   Watson,  4 
Dev.,  509. 

11.  The  books  of  a  corporation,  containing  entries  in  accord- 
ance with  its  charter,  when  identified,  are  admissible  to  prove  the 
existence  and  organization  of  the  company,  and  also  the  ap- 
pointment of  its  officers  and  agents.  Buncombe  Th.rnj.dke  Com- 
pany v.  McCarsou,  1  Dev.  and  Bat,  306. 

12.  The  way-hills  containing  the  names  of  passengers  and  the 
amounts  paid  for  their  fare,  made  out  by  an  agent  of  a  company 
of  stage  contractors  and  transmitted  to  them  or  to  their  agentaj 
are  admissible  in  evidence  against  the  sureties  for  the  faithful 
accounting  and  paying  over  of  the  agent;  because  it  was  part 
of  the  agent's  duty  to  make  out  and  transmit  these  bills,  and  it 
was  the  mode  of  accounting  and  charging  the  agent  which  must 
have  been  contemplated  by  the  sureties  when  they  guaranteed 
his  fidelity,  in  paving  what  he  might  collect  in  the  course  of  his 
agency.     Feckv.  Gilmer,   4-  Dev.  and  Bat.,  249. 

13.  It  is  a  well  established  rule,  that  where  a  person,  who  has 
peculiar  means  of  knowing  a  fact,  makes  a  declaration  or  writ- 
ten entry  of  that  fact,  which  is  against  his  interest  at  the  time, 
such  declaration  or  entry  is,  after  his  death,  evidence  of  the  fact, 
as  between  third  persons.     Ibid. 

14.  In  an  action  on  a  constable's  bond,  the  constable's  receipt 
for  "an  account"  to  collect,  is  not  even  prima  facu  evidence 
that  the  amount  of  the  account,  or  any  part  of  it,  was  really  due. 
Stole  v.  Holcombe,  3  (red.,  211. 

15.  A  memorandum, made  by  an  ofBeerrh  a  private  memoran- 
dum book,  of  the  time  of  the  levy  of  an  execution,  is  no  evidence 
for  him.     State  v.  Hicks,  3  [red.,  188. 

16.  In  an  action  against  a  person,  charging  him  as  a  partner, 
it  is  competent  for  him  in  exoneration  of  himself,  to  introduce 
the  original  articles  of  copartnership  of  the  firm,  of  which  he  is 
alleged  to  have  been  a  member.     Hurm  v.  3fcKee,  4  lied.,  475. 

17.  Then  turn  or  certificate  of  a  ministerial  officer,  as  to  what 
he  has  done  out  of  court,  is  only  to  he  taken  as  prima  facie 
true,  and  is  not  conclusive;  it  may  tie  contradicted  by  any  evi- 
dence and  shown  to  he  false,  antedated,  &c,  Sunlit  v.  Low,  5 
Ired.,  197. 

18.  When  an  entry  in  a  book  has  been  adjudged  to  be  admis- 
sible evidence,  it  is  admissible  for  all  purposes,  and  upon  a.  new 
trial  of  thecase.  the  decision  of  the  court  below  upon  ii  spection 
is  conclusive  as  to  all  objections  on  account  of  matters  appearing 
on  the  face  of  the  entry.     Fain  v.  Edwards,  Busb.,  (it. 

XXII.    LAWS  AND  LEGAL  PROCEEDINGS  OF  OTHER  STATES  AND  COUNTRIES. 

1.  A  copy  of  a  registered  deed,  certified  by  the  clerk  of  the 
county  court  in  Virginia,  who  was  certified  by  the  Governor  to 


EVIDENCE.— XXII.  497 

be  the  clerk  of  that  court,  was  admitted  in  evidence,  upon  the 
plaintiff  swearing  that  he  had  not  the  original.  The  act  of  Con- 
gress was  only  affirmative,  and  this  was  the  usual  mode  before 
that  act.     Ettmore  v.  Mills,  1  Hay..  359,  (412.) 

2.  Acts  of  the  legislature  of  Virginia  must  becertified  by  the 
secretary  of  the  commonwealth,  and  not  by  the  clerk  of  the 
House  of  I  >elegates.     Ibid. 

3.  A  record  from  the  court  of  another  State  should  be  authen- 
ticated by  the  seal  of  the  court,  and  if  there  be  no  seal,  that  fad 
should  be  certified.     Alston  v.  Taylor,  1   Hay.,  881,  (439.) 

4.  The  printed  statute  book  of  another  state  may  be  read  as 
evidence  of  the  law  in  that  State.  Poindexter  v.  Baker,  2  Hay., 
173,  (364.)  (Overruled  by  State  v.  Twitty,  2  Hawks,  441.)  For 
the  manner  in  which  the  statutes  of  ether  States  are  new  to  be 
proved,  see  Rev.  Co'de,  eh.  44,  sec.  3. 

.">.  A  record  of  the  proceedings  against   a  bankrupt,  attested 
by  the  clerk  of  the  district  court,  is  good  evidence;  the  act  of 
■  Ion       -s  nni  requiring  the  certificate  of  the  presiding  judge  in 
the  case  of  records  from   the    United   States  courts.     Murray  v 
b,  2  Hay..  290,  (472.) 

6.  The  titie  of  a  statute  is  no  part  thereof;  when,  therefore. 
on  an  indictmenl  for  forgery,  a  certified  copy  of  a  record  was 
prod  1 1  m  .1  of  an  act  of  South-Carolina,  reciting  the  title  of  another 
act  of  that  state,  it  was  held  that  this  was  not  sufficient  to  estab- 
lish the  present  existem f  the  act   referred    to  as  a  certified 

copy  of  the  act  itself  would  be  better.  State  v.  Welsh,  3  Hawks, 
4()4! 

7.  The  act  of  1823,  directing  the  mode  in  which  the  laws  ol 
the  other  States  shall  be  proved,  is  substantially  complied  with 
by  a  certificate  under  the  hand  and  private  seal  of  tire  secretary 
of  State,  accompanied  by  a  certificate  of  the  governor,  under  the 
seal  of  the  State,  as  to  the  official  character  of  the  secretary. 
State  v.  Jackson,  2  Dev.,  563.     (See  Revised  Code,  eh.  44,  sec.  3  ) 

8.  The  ci  itificate  of  the  Secretary  of  state,  in  relation  to  the 
statutes  of  another  State,  given  in  pursuance  of  our  statute,  is 
evidence  in  criminal  as  well  as  civil  eases.  State  v.  Patterson,  2 
Ired.,  346. 

'.*.  To  prove  the  record  of  a  suit  in  South-Carolina,  the  plain- 
tiff introduced  the  certificate  of  .!.  R.,  clerk  of  the  court,  under 
the  seal  of  the  court,  "that  the  annexed  are  correct  transcripts 
of  the  original  proceedings,  filed  in  this  suit,  of  YV.  T.,  adminis- 
t  iter  r.  W.  L."  to  which  was  added  the  certificate  of  the  pre- 
siding judge,  "-that  -i.  R.,  who  gave  the  attestation  above  set 
ferth,  is  the  clerk  of  said  court,  and  keeper  of  the  records  thereof, 
unci  that  siid  attestation  is  indue  form;"  it  toas  held  that  this 
authentication  was  sufficient.     Lie  v.  Gause,  2  Ired.,  440. 

10.  What  is  the  law  of  another  state,  (not  contained  in  a 
statute,)  is,  like  the  law  of  foreign  countries,  a  matter  of  'fact  to 
32 


498  EVIDENCE.— XXII. 

be  tried  by  a  jury,  and   cannot  be  determined  by  the  court. 
Moore  v.  Qwynn,  5  Ired.,  187. 

11.  Where  a  case  arises  under  the  .statute  of  a  sister  state,  the 
statute  being  properly  authenticated  under  the  act  of  Congress, 
or  proved  under  our  act  of  ass<  inbly,  it  is  the  province  of  the 
court  to  decide,  both  upon  the  i  ■  i.  ,<  ace  of  the  statute  and  its 
proper  construction.     Ibid. 

12.  Where  a  decree  or  judgment  in  another  state  is  produced 
in  evidence  in  one  of  our  courts,  it  is  not  ne<  i  I  ■  how,  by 
any  extrinsic  evidence,  thai  I  tit  or  decree  was  war- 
rani  i  by  the  laws  of  the  state  in  which  it  was  pronounced ;  the 
decree  or  judgment,  itself,  being  the  high  il  i  vid<  m  e  of  that 
fact.     Davids  n  v.  Sharpe,  6  [red.,  14. 

13.  The  certificate  ofthepresidingmagistrateofacourt  of  record 
in  another  state,  which  merely  ■  i  '■'  rth  that  A  B,wlio  attests 
the  transcript,  was  the  clerk  oi  thai  court,  but  does  not  declare 
that  "his  attestation  is  in  due  form  of  law,"  not  being  according 
to  ihe  act  of  Congress,  cannot  be  reci  iv<  .1  in  evidence.  Shown 
v.  Barr,  11  [red.,  296. 

14.  Where  a  copy  of  a  statute  of  anoth  r  state  has  been  re- 
ceived in  evidence  in  the  cour,t  below,  up<  □  insufficient  proof, 
yet,  if  it  be  made  to  appear  to  the  supreme  court,  from  an  official 
and  proper  source,  thai  the  cop;*  i  rts  ived  in  evidence  was 
correct,  a  vtmin  de  novo  will  no1  be  awarded  for  that  i  rror.  Ma- 
Duguld  v.  Smith,  11  J  red,  576. 

15.  To  receive  iii  evidence,  under  our  statute,  a  certified  copy 
from  the  secretary  of  stale,  of  an  ad  of  as  embly  of  another 
state,  it  is  sufficient  that  the  seal  of  the  state  be  attached  to  the 
certificate,  required  from  the  governor.  It  is  not  necessary  thai 
it  should  be  attached  to  the  secretary's  certificate.  Slate  v. 
Qk    '■■  13  Ired.,  114. 

16.  A  transcript  of  a  statute,  once  duly  certified  by  the  secre- 
tary of  State,  in  the  manner  pi  ribc  b  our  law,  is  evidence 
at  all  times  of  its  being  in  fore  .according  to  its  terms,  unless  a 
repeal  be  shown.     Ibid.     (See  Revised  Code,  oh.  4  I    i    c.  3  ) 

17.  Th  •  copy  of  a  will  of  a  person  residing  in  i  I  - 
(admitted  to  probate  there,)  disposing  of  pn  bin  this 
state,  must  have  been  allowed,  lil  d  a  I  rei  led  in  the  county 
court  here,  in  order  to  render  it  admissible  in  evidence  under 
Ihe  act  of  1844,  ch.  88,  sec.  li.  Its  mere  authentication  from 
abroad  does  not  make  it  competent  evid  ■  '  .',"<<  ■'  v. 
Hearne,  Busb.,  185,  S.  P.  AV'/.v  v.  Ross.  Busb.,  297.  (See  Rev. 
€ode,  ch.  44,  sec  '.).  and  ch.  117.  sec.  17.) 

18.  Before  a  will  made  in  another  state  can  be  received  by 
our  court,  as  having  been  established  before  a  tribunal  in  the 
other  state,  it  must  appear  from  the  record  made  by  such  tribu- 
nal, that  such  will  was  judicially  passed  upon,  and  allowed  by 
the  tribunal.     Drake  v.  Merrill,  2  Jones,  368. 


EVIDENCE.— XII.-XXIII.  499 

19.  A  will,  containing  a  devise  of  Knd  lying  in  this  state 
made  by  a  citizen  of  another  state,  can  have  no  validity  or  opera- 
tion, unless  it  be  proved,  as  prescribed  by  the  act  of  1844,  eh. 
88,  to  have  been  properly  executed,  according  to  the  laws  of  this 
state.     Ibid.     (See  Rev.  Code,  ch.  119,  sec.  17.) 

20.  A  will,  containing  a  devise  of  land  lying  in  this  state, 
made  by  a  citizen  of  another  state,  cannot  have  any  validity  or 
operation,  though  proved  in  the  court  of  that  other  state,  unless 
it  be  proved  by  the  oath  of  witnesses  before  the  proper  court  of 
this  state,  to  have  been  properly  executed,  according  to  the  laws 
of  this  state.      Ward  v.  Hearne,  3  Jones,  326. 

21.  The  court  cannot  take  judicial  notice  of  the  law  of  an- 
other state,  or  of  a  foreign  country,  but  it  must  be  proved  as  a 
faettoflie  court,  and,  when  thus  proved,  it  is  the  duty  of  the 
court  to  instruct  the  jury  as  to  the  meaning  of  the  law,  its  appli- 
cability to  the  case  on  trial,  and  its  effect  on  the  case;  and  it  is 
erroneous  to  refer  the  whole  question  to  the  jury  without  such 
instructions.     Tin  per  v.  3/oorc,  5  Jones,  1;)(). 

22.  '■  ipy  of  a  deed,  inter  parti  ?,  ex  outed  in  pais,  ae- 
knowledged  and  Recorded  in  the  court  of  another  state,  is  not 
such  a  record  and  judicial  proceeding  as  can  be  authenticated 
uiiilerilie  provi  ions  of  the  ant  of  Congress  of  1790.  Warren 
v.   Wade,  7  Jones,  494.     (See  Revised  Code,  Appendix,  623.) 

23.  If  the  copy  of  the  deed  from  an  office  booh  had  been  au- 
thenticated in  the  manner  required  by  the  supplemental  act  of 
Congress,  passe  1  in  1804,  it  might,  perhaps,  have  been  admitted, 
under  1  hat  act.     Ibid. 

24.  Before  a  will  of  personalty  can  be  received  in  our  courts, 
as  having  been  established  in  the  tribunal  of  another  state,  it 
must  app ear,  b;    a  properly  authenticated  exemplification  of  the 

uch  tribunal,  that  the  will  was  duly  proved  b<  Fore  it, 
and  that  the  tribunal  was  the  proper  court  of  probate  of  the 
testator's  domicil.      Toionsend  v.  Moore,  8  Jo     -.  i  17. 

(Wills — Of  the  probate  and  re-probal     38  56  58.) 

XXIII.    EVIDENCE  IX  CASES    RELATING    TO  WILLS    \XI>  TESTAMENTS. 

1.  '1  he  interest,  to  exclude  a  witness  to  a  will,  must  be  either 
an  exp  I  directly  to  him,  a  legaoj  with  an  express  usd 
for  him,  or  a  secret  tru  ;  or  agreement  on  tic  part  of  the  lega- 
tee for  his  u  -, •;  and  a  declaration  by  witness,  that  the  legatee 
holds  for  his  use,  will  not  exclude  him.  unless  it  ]>e  proved  that 
the  legatee  had  made  an  engagement  to  hold  for  his  benefit. 
Rogers  v.  Briley,  1  Hay,  256,  £295.) 

2.  Though  a  fact  be  positively  sworn  to  by  one  or  two  wit- 
nesses, and  they  agree  pretty  well  in  their  testimony,  yet  the 
jury,  either  from   their  character,  or  the  circumstances  of  th© 


500  EVIDENCE.— XXIII. 

case,  may  disbelieve  them,  and  find  against  their  testimony. 
Ibid. 

3.  Where  an  ambiguity  does  not  appear  on  the  face  of  the 
will,  but  is  bred  by  the  evidence,  it  may  be  explained  away  by 
evidence;  an  averment  may  ascertain  the  subject  matter  of  a 
devise,  but  not  add  to  the  will,  or  take  from  it,  or  in  any  wise 
alter  its  effect.     Hatch  v.  Hatch,  2  Hay..  32,  (191.) 

■4.  The  subscribing  witness  to  a  will  may  lie  called  by  the  ca- 
veator to  disprove  the  testator's  sanity.  Hampton  v.  Q.arland,  - 
Hay.,  147  (320.) 

5.  A  copy  of  a  will,  which  has  been  proved,  cannot  lie  given 
in  evidence,  unless  attested  by  the  clerk.  Raxj  v.  Mariner,  - 
Hay.,  385  (585.) 

6.  Parol  evidence  is  not  admissible  to  show  that  a  devisor 
used  tile  word  •heirs"  in  his  will,  in  a  sense  different  from  its 
legal  meaning.     Stith  v.  Barnes;  1  Car.  L.  R.,  484  (96.) 

7.  On  an  issue  of  tie vinavit  vel  non,  where  the  executors  and  de- 
visees are  parties,  their  declarations  are  evidence  against  them- 
selves. McCrainev.  Clark,  N.  C.  Term,  E.,  278,  (698)  S.  C.,.2 
Murph.  317. 

8.  Evidence  is  admissible  of  the  declarations  of  a  testator, 
made  at  any  time  subsequent  to  the  execution  of  the  will,  which 
goto  show  that  the  testator  believed  the  contents  of  the  will 
to  be  different  from  what  they  really  are;  or  declarations  by 
testator  of  any  other  circumstances,  which  show  that  it  is  not 
his  will,  are  admissible.     Red  v.  Reel,  1  Hawks  248. 

'.!.  On  an  issue  of  del  isavit  vel  non,  the  surety  on  the  admin- 
istration bond  of  the  administrator  pendente  lite  is  a  competent 
witness  in  support  of  the  will.     Martin  v.    Hough,  2  Hawks  368. 

10.  To  entitle  a  party  to  give  parol  evidence  of  the  execution 
or  contents  of  a  will,  alleged  to  be  destroyed,  where  there  is  not 
sufficient  evidence  to  warrant  the  conclusion  of  its  actual  de- 
struction, the  party  must  show  that  he  has  made  diligent  enquiry 
and  search  after  the  will,  in  the  place  where  it  would  probably 
be  found  if  it  existed;  and  it  is  the  province  of  the  court,  in  the 
first  instance,  to  say  whether  there  is  sufficient  proof  of  the  loss 
or  destruction  of  the  instrument,  or  whether  sufficient  enquiry 
has  been  made  to  let  m  parol  evidence.  Eure  v.  Pitman,  3 
Hawks  364. 

11.  A  will  cannot  be  offered  in  evidence  for  any  purpose  with- 
out a  certificate  of  the  probate.     Sasser  v    Herring,  3  Dev.,  340. 

12.  An  attesting  witness  is  the  witness  of  the  law,  and  may 
be  discredited  by  any  one  who  examines  him.  Growell  v.  Kirk, 
3  Dev.,  355. 

13.  An  attesting  witness  to  a  will  may  be  asked  his  opinion 
of  the  testator's  sanity,  but  the  same  question  to  another  witness 
is  improper.     Ibid. 

14.  In  an  issue  of  divisacit  vel  non,  declarations  of  the  suppos- 


EVIDENCE.— XXIIL  501 

e$  testator,  made  after  the  execution  of  the  will,  are  admissible 
to  prove  that  it  was  obtained  by  fraud,  notwithstanding  the  act 
of  1819,  to  prevent  frauds  in  the  revocation  of  wills.  Howell  v. 
Barden,  3  Dev..  442.  S.  P.,  Hester  v.  Hester,  4  Dev..  228. 

1T>.  A  widow,  who  dissented  from  her  husband's  will,  and  had 
her  dower  and  personal  estate  allotted  to  her,  as  in  case  of  intes- 
tacy, is  a  competent  witness  to  prove  declarations  made  to  her 
by  hei  husband  in  his  life  time,  as  to  the  fart  inn  ot  a  paper  of- 
fered as  his  will,  on  an  issue  ol  devisavit  vel  non,  to  which  she  is 
no  party.     Hester  v.  Hester.  4  Dev.,  228. 

ltj.  On  the  trial  of  an  issue  of  devisavit  vel  non.  where  the  will 
is  propounded  by  two  legatees,  one  of  whom  is  a  colored  woman. 
and  the  other  a  white  woman,  and  the  caveators  are  colored  per- 
sons, the  caveators  may  prove,  by  other  colored  persons,  the  de- 
clarations of  the  colored  propounding  legatee,  in  relation  to  the 
subject  matter  of  the  issue.  Hagland  v.  Huntingdon,  1  Ired.-, 
561. 

17.  A  petition  was  filed  for  the  reprobate  of  a  will  on  the 
ground  that  the  supposed  tettator  was  mm  compos  mentis.  A 
ami  B,  his  wile,  joined  in  the  petition,  she  being  one  of  the  next 
of  kin;  but  afterwards  A.  the  husband,  caused  himself  to  be 
joined  with  the  ex<  cutors  in  propounding  the  will,  leaving  his 
wife  still  one  of  the  caveators;  it  was  //(/'/that,  on  the  trial  of 
the  issue  of  devisavit  vel  mm.  the  declarations  ot'  A  were  not  ad- 
missible in  evidence  to  prove  the  incapacity  of  the  supposed  tes- 
tator.    Enloe  v.    SlterriU,  i>  Ired..  212. 

18.  When  the  declarations  of  any  party  to  an  issue  of  devisa- 
vit vel  mm  are  admitted  in  evidence,  it  is  because  of  the  rule, 
that  the  declarations  of  any  person,  against  his  interest,  are  legal 
testimony  as  against  him.     Ibid. 

19.  On  the  trial  of  an  issue  of  dwisavit  vel  mm.  tin-  court  may 
instruct  the  jury  to  find  as  to  the  validity  or  invalidity  of  the 
whole,  ^x  any  part  of  the  will,  and  the  declarations  of  a  I  at© 
against  his  interest  will  be  v,-ood  evidence  on  such  trial,  so  far  as 
Ins  interest  is  concerned.      Gash  v.  Johnson,  6  ired..  289. 

20.  If  the  declarations  of  a  devisee  of  land,  who  is  not  a  party 
to  the  suit,  be  received,  that  is  no  cause  for  a  new  trial,  as  the 
interest  of  such  devisee,  in  the  land  devised,  will  not  be  affected 
ly  the  finding  in  that  issue.  Ibid.  (See,  whether  this  is  not  al- 
tered by  the  Rev.  (ode.  ch.  11!).  sec.  20.) 

21.  In  an  issue  of  devisavit  vd  mm.  where  the  subscribing  wit- 
nesses to  the  supposed  will  disagree  as  to  the  capacity  of  the 
supposed  testatoi-,  other  proof  may  be  given  as  to  that  fact,  and 
the  jury  must  decide  upon  the -whole  evidence.  Bill  v.  Clark, 
9  Ired., '239. 

22.  Unpublished  wills  of  the  supposed  testator  are  admissible 
in  evidence,  as  to  questions  of  capacity  and  undue  influence,  as 
they  tend  to   show   intelligence  and  a  settled  purpose  to  make 


502  EVIDENCE— XXIII.-XXIV. 

dispositions,  like  those  contained  in  the  script  in  contest.  Love 
v.  Johnston,  12  Ired.,  355. 

23.  Where,  on  the  trial  of  an  issue  of  devisavii '  vel  non,  the  dec- 
larations of  a  party  arc  given  in  evidence,  and  it  appears  after- 
wards that  those  declarations  were  in  fact  in  favor  of  his  own 
interest,  though  apparently  against  it,  the  court  may,  at  any 
stage  of  the  trial,  direct  the  jury  to  disregard  them.     Hid. 

24  Where  the  propounders  of  a  script,  as  the  last  will  and 
testament  of  the  deceased,  lived  in  the  same  house  with  him,  it 
ivas  held  not  to  be  competent  for  the  caveators  to  give  in  evi- 
dence declarations  of  the  propounders,  calculated  to  influence  the 
supposed  testator  in  the  disposition  of  his  property,  without,  at 
the  same  time,  showing  that  suGh  declarations  were  made  in  the 
p.iexenee  of-the  alleged  testator,  or  wen/  communicated  to  him. 
Jenkinsv.  Hall,  7  Jones,  295. 

25.  It  is  not  error  for  a  judge  to  charge  the  .jury,  that  the  law 
gives  peculiar  importance  to  the  testimony  of  the  physician  at. 
tending  on  a  testator,  and,  also,  to  that  of  the  subscribing  wit- 
nesses, as  to  the  capacity  of  the  supposed  testator.  Gorneliiis  v. 
Qbrnelivs,  7  Jones,  593. 

2ii.  Under  the  Rev.  Code,  ch.  119,  sec.  7,  a  person  named  as 
executor  in  a  script,  made  since  the  code  went  into  operation, 
and  propounded  as  a  will,  may  be  examined  as  a  witness  for  the 
caveator,  as  well  as  for  the  propounder,  though  he  be  named 
as  a  party  plaintiff  to  the  issue  of  devisavit  vel  non.  Pannell  v 
Scoggirt,  8  Jones,  408. 

See  (Evideneg — Laws  and  legal  proceedings  of  other  states 
and  countries,  17-lfc-19-20-24.) 

XXIV.    IX    CASES    OF   MALICIOUS    PROSECUTION    AND    SLANDER. 

1.  In  an  action  for  malicious  prosecution,  what  the  defendant 
swore  on  the  trial  of  the  indictment  may  be  given  in  evidence 
for  him.     Moody  v.  Render,  2  Hay..  29,  (185.)  ' 

2.  When,  upon  the  trial  of  a  State's  wari'ant  for  larceny,  the 
justice  records  the  testimony  of  the  prosecutor,  the  person  prose* 
cuted  may,  in  an  action  for  malicious  prosecution,  give  such 
parol  evidence  of  this  testimony,  as  is  consistent  with  the  writ- 
ten statement,  and  tends  to  a  more  exact  specification  of  tho 
thing  alleged  to  have  been  stolen.  Watt  v.  Greenlee,  3  Murph., 
246. 

3.  In  an  action  by  A  against  B,  for  a  malicious  prosecution  for 
larceny,  in  which  B  defended  by  showing  probable  cause  on  tho 
information  of  another,  A  may  be  permitted  to  prove  that  B  was 
present  when  two  witnesses  swore,  before  a  magistrate,  to  facts 
proving  the  information  which  B  had  received  to  be  untrue,  and 
he  need  not  produce  the  record  of  the  proceedings,  or  warrant 


EVIDENCE.— XXIV.  503' 

before  the  magistrate,  to  lay  a  foundation  for  the  introduction  of 
this  testimony.      Watt  v.  Greenlee,  2  Hawks,  I86i 

4.  In  order  to  show  malice  in  1!,  evidence  is  also  admissible. 
that  A  was  the  only  witness  bound  by  recognizance  to  appear 
in  support,  of  a  prosecution  for  felony,  against  a  brother  of  B. 
Ibid. 

5.  In  an  action  of  slahder,  for  having  charged  the  plaintiff 
with  swearing  falsely,  as  to  the  residence  of  a  certain  person, 

made  by  that  person^  not  in  the  presence  of  the 
plaintiff,  as  to  his  residence,  are  inadmi        I  -i  the  plain- 

1  •.  on  a  mere  abstraci  question,  as  to  the  residence  of  an 
individual;  the  fact  depends  so  much  on  intent,  that  declarations 

y   him.   accompanying,   and  explanatory   of  his  bodily 
presence,   ireadmi  Ch  rry  v.  Slade, 

2  Hawls  . 

6.  In  an  action  for  slander,  charging  th  *  plaintiff  with  perjury, 
in  a  particular  suit,  he  is  not  bound  to  produce  the  record  of  that 
suit.     McDonald  v.  3furchison,  1  Dev.,  7. 

7.  Other  words,  besides  I  >■■•■■':  landerous,  may  be 
proved  on  the  trial,  in  an  ai  tiori  of  the 

i    intent  of  the  del  :nd   nt,  and    fehi  .  as  well  where   they 
are  acl  where  they  aremot.     Brittain  v.  Allen,  2Dev.r 

120. 

•S.   In  an  action  for  a    i  aition,  when  the  defen- 

dant v.  ;    i   d  to  give  in  evidence  part  of  what  he  swore 

to  en  the  trial  of  the  indictment,  without  objection  from 
the  olaintiff,  and  anotherpart   of  the  defendant's   oath,  on  tike 

toiled  information  given  by  a.  negro,  -'■'  wash  Id  that,  the 
I  t'  having  permitted  a  part  to  be  given  in  evidence,  the 

lit    had  a   right   to   have    the    whole    stated.      JJ'lii'c    v. 

0'  \  al,  2  Dev.,  166. 

\).  In  an  action  for  a  malicious  prosecution,  on  a  question 
whether  there  was  a  proba    li   a  a  an  arrest,  evidence  of  a. 

suspicioui  ihav'ior  iu  a  plaintiff,  the  day  befori  i  was  made, -is 
a. hm---"  le,  although  there  was  no  proof  that  the  defendant  knew 
of  thai  '-eni'ii"!  al    h    I  ime  of  the  arrest.     Ibid. 

10.  In  an  action  of  slander,  transactions  between  the  defend- 
ant and  others,  with  which  the  plaintiff  had  nothing  to  do,  are 
net  aainissible  in  evidence  against  the  plaintiff.  Hamilton  v. 
Smith,  'I  Dev.  and  Bat,,  '274. 

11.  In  an  action  of  slander,  the  defendant  cannot,  in  support 
of  his  plea  of  justification,  give  evidence  el'  transactions  or  con- 
versations between  himself  and  others,  to  which  the  plaintiff  was 
not  privy.     Jenkins  v.  Co  '       a  n,  1  [red.,  .'>0!>. 

12.  In  an  action  on  the  case  fur  shmder.it  is  competent  for 
the  defendant  to  show  that  the  words  were  uttered  before  a  tri- 
bunal of  a  religious  society,  of  which  the  plaintiff  and  defendant 
were  both   members,  for  the  purpose  of  disproving  malice;  but 


504  EVIDENCE.— XXIV. 

the  decision  of  such  tribunal   is  incompetent.      Whitaker  v.  Car- 
ter, 4  I  red.,  461. 

13.  On  the  trial  of  an  action  for  slander,  in  charging  the 
plaintiff  with  perjury,  it  is  not  competent  for  the  defendant  to 
give  evidence  of  any  other  perjury,  than  that  laid  in  the  decla- 
ration, and  affirmed  to  be  true  by  a  plea  of  justification.     Ibid. 

14.  In  an  action  for  a  malicious  prosecution,  the  defendant 
may,  for  the  purpose  of  rebutting  the  imputed  malice,  show  that 
he  had  consulted  counsel  learned  in  the  law,  upon  a  full  and  fair 
statement  of  all  the  facts  of  the  case,  and  acted  according  to  his 
advice;  but  it  is  incompetent  tor  him  to  prove  that  he  consulted 
with  an  unprofessional  person,  and  followed  Ins  advice,  in  order 
to  show  that  he  acted  bona  fide  and  without  malice.  Beal  v. 
Robeson,  8  Ired.,  276. 

15.  In  an  action  of  slander  or  malicious  prosecution,  where 
the  plaintiff  is  entitled  to  recover  vindictive  damages,  lie  may 
.give  in  evidence  the  pecuniary  circumstances  of  the  defendant. 
Adcockv.  Marsh,  8  Ire  .,  360. 

16.  In  an  action  of  slander  for  charging  the  plaintiff  with 
perjury,  in  swearingon  a  certain  trial  that  "he  knew  the  character 
of  B,  and  would  from  his  general  character,  believe  him  on 
oath,"  it  is  competent  for  the  plaintiff,  in  answer  to  a  plea  of  jus- 
tification, to  prove  by  witnesses  that  they  also  would  believe  B 
on  oath,  from  his  general  character.  Howell  v.  Howell  10  Ired., 
82. 

17.  In  an  action  for  a  malicious  prosecution,  the  oath  of  the 
prosecutor  in  the  original  complaint,  or  before  a  magistrate,  is 
■evidence  for  him.     Johnson  v.  Chambers,  10  Ired.,  287. 

18.  The  verdict  of  a  petit  jury,  acquitting  a.  man  indicted  for 
a  conspiracy,  does  not,  in  an  action  tor  malicious  prosecution, 
support  the  averment  that  the  indictment  was  without  probable 
cause.     Heal  v.  Pearcy,   11  lied..  I'M;!. 

lit.  Where  a  man  has  charged  a  woman  with  incontinence 
with  a  particular  individual,  he  cannot,  on  the  trial  of  an  action  for 
this,  go  into  evidence  to  show  that  she  was  guilty  with  other 
persons.      Waters  v.  Smoot,  11  Ired..  315. 

20.  The  declarations  of  the  husband,  who  is  necessarily  a  party 
to  the  suit  for  the  slander  of  his  wife,  are  admissible  in  evidence 
to  show  her  guilt.      Ibid. 

21.  In  an  action  of  slander,  the  plaintiff  has  no  right  to  ask  a 
witness  what  he  considered  to  be  the  meaning  of  the  words 
spoken,  except  in  these  cases.  First,  Where  the  words  in  their 
ordinary  meaning  do  not  import  a  slanderous  charge,  yet  if  they 
be  susceptible  of  such  a  meaning,  and  the  plaintiff  avers  a  fact, 
from  which  it  may  be  inferred  that  tkey  were  used  lor  the  pur- 
pose of  making  the  charge,  he  may  prove  such  averment,  and 
then  the  jury  must  decide  whether  the  defendant  used  the  words 
in  the  sense  imputed  or  not.     Secondly,  Where  a  charge  is  made 


EVIDENCE— XXIV.-XXV.-XXYL  505 

by  using  a  cant  phrase,  or  words  having  a  local  meaning,  or  a 
nickname,  when  advantage  is  taken  of  a  fact  known  to  the  per- 
sons spoken  to,  to  convey  a  meaning,  which  they  understood  by 
connecting  the  words  (ot  themselves  unmeaning)  with  such 
facts,  then  the  plaintiff  must  make  an  averment  to  that  effect, 
and  may  prove,  not  only  the  truth  of  the  averment,  but  also  that 
the  words  were  so  understood  by  the  persons  to  whomtheywere 
addn  seed;  for,  otherwise,  they  are  without  point  and  harmless. 
Sasser  v.  Bouse,  IS  Ired.,  \Xi. 

i'i.  A  plaintiff  in  an  action  of  slander  may  give  in  evidence 
in  chief  his  general  character.     Sample  v.   Wynn,  Busb.,  319. 

23.  It  is  competent  in  an  action  fur  slander,  for  the  plaintiff  to 
prove  that,  after  the  theft  with  which  he  was  charged  was  al- 
leged to  have  been  committed,  the  defendant  continued  on 
friendly  terms  with  him.     Burton  v.  March,  6  Jones  409. 

24.  Good  character  can  be  given  in  evidence  by  the  plaintiff. 
in  an  action  of  slander,  as  well  to  repel  the  evidence  given  to 
sustain  the  plea  of  justification,  as  to  enhance  the  amount  of 
damages.      Ibid. 

XXV.    AS  TO  THE  IDENTITY  OF  NAMES 

1.  The  question  of  identity,  where  different  names  are  alleged 

l- to  the  same  person,  is  one  exclusively  for  the  jury  upon 
the  evidence  given.     Toole  v.  Peterson,  9  Ired.,  180. 

2.  In  all  eases  where  there  are  two  persons  having  the  same 
name,  the  elder  is  presumed  to  be  meant  when  there  is  no  addi- 
tion to  the  name,  but  evidence  is  admissible  to  show  that  the 
younger  was  the  person  intended.     Stevens  v.  West,  6  Jorn  s,  49. 

XXVI.    IX  CRIMINAL  PROCEEDINGS  AND  INDICTMENTS. 

1.  An  examination  of  a  prisoner  made  before  a  magistrate 
must  be  recorded,  and  parol  evidence  of  it  cannot  be  received. 
State  v.  Grove,  .Mai-.,  43,  (36. ) 

'I.  Confessions  of  a  prisoner  before  a  justice,  when  not  reduced 
to  writing,  may  be  proved  by  parol.     State  v.  Irwin,  1  Hay.,  112, 

3.  Depositions  taken  in  the  absence  of  a  criminal  shall  not  be 
read  in  evidence  against  him.     State  v.   Webb,  1  Hay..  103,  (120.) 

4.  Naked  confessions,  unattended  with  circumstances,  are  not 
sufficient  to  justify  a  conviction  for  a  capital  offence.  State  v. 
Long,  1  Hay..  455,  (524.) 

4.  In  an  indictment  for  horse  stealing,  the  jury  may  infer 
from  circumstances,  that  the  horse  was  taken  by  the  prisoner  in 
the  district  in  which  he  is  tried,  although  he  was  never  seen 
with  the  horse  in  that  district.  State  v.  Adams,  1  Hay.,  4(i3, 
(534.) 


506  EVIDENCE— XXVI. 

5.  A  confession,  extorted  and  Uncorroborated  by  circumstan- 
ces, weighs  nothing;  but  a  confession,  whether  extorted  or  not, 
that  relates  circumstances  with  which  the  prisoner  could  not  well 
be  acquainted,  but  as  the  perpetrator  of  the  crime,  and  which  cir- 
cumstances are  proved  by  other  witnesses  to  have  actually  ex- 
isted, is  testimonj7  proper  to  be  left  to  the  jury.  State  v.  Moore, 
1  Hay.,  582,  (55rf.-) 

6.  Dying  declarations  are,  in  certain  cases,  admissible  when 
the  party  believes  that  he  is  in  a  dying  condition,  but  not  when 
lie  entert  tins  hopes  ot  a  recovery.  State  v.  Bloody,  2  Hay.,  31,, 
(189.) 

7.  On  >\   an  indictment  for  perjury,  cha -d   to- have 

been  commifcte  1  before  a  company  court  martial,  it  is  not  nece 
sary  to  produce  the  commission  of  the  captain,  parol  proof,  of  his 
acting  as  such  being  sufficient.     State  v.  Gregory,  2  Murph.,  (ill. 

8.  The  declarations  of  a  party  cannol  be  offered  in  evidence 
mi  his  beh  If  in  any  case,  unless  they  accompany  ai  and  be 
pars  rei  g  ice,  and  are  offered  as  such;  and  they  are  not  admis- 
sible even  to  bow  the  insanity  of  the  pri  on  r;  '  'd  therefore, 
that  where  a  prisoner  had  committed  homicide  at  10  o'clock  of 
the  night  of  one  day,  evidence  of  what  he  said  next  morning 
could  not  be  received  to  prove  his  derangement.  Slate. v.  Scott, 
1  Haw] 

9.  It  is  competent  for  one  charged  with  flic  murder  of  a  slave, 
to  give  in  evidence  thai  the  decea  I  i  turbulent,  and  was 
insolent  and  impudent  to  white  pi  v.  To.  ket,  1 
Hawk 

10.  The  examination  of  a  witness  in  a  Stat  .  en  be- 
fore a  magistrate  in»  writing,  cannot,  on  the  trial  of  the  same 
matter  in  court,  be  used  as  evidence  in  chief,  particularly  when 
the  wit  i  c  ■■■  is  present;  but  it  may  be  used  to  show  contradictory 
statements  by  him.     State  v.  McLeod,  1  Hawks,  344. 

1 1.  The  declarations  of  a  deceasi  d  person  that  he  w  i  i  poisoned 
by  certain  individuals,  not  made  immediately  to  his 
death,  but  at  a  time  when  he  despaired  of  his  recovery,  and  felt 
assured  that  his  disease  would  prove  fatal,  are  admissible  as 
dying  declarations.     State  v.  Poll,  1  Hawks.  442. 

12.  When  a  common  design  is  proved,  the  act  of  one,  in  fur- 
therance of  that,  design,  is  evidence  against  his  associates;  but 
the  declarations  of  one  of  the  parties  can  be  received  as  evidence 
only  against  himself.     Ibid. 

13.  Upon  an  indictment  for  uttering  forged  money,  knowing 
it  to  be  forged,  evidence  may  be  received  of  former  acts  and 
transactions,  which  tend  to  bring  home  the  scienter  to  the  de- 
fendant, notwithstanding  that  such  evidence  may  fix  upon  him 
other  charges,  besides  that  upon  which  he  is  tried.  Slate  v. 
Twitty,  2  Hawks,  248. 

14.  When  a  witness  is  called,  who,  in  the  commencement  of 


EVIDENCE.— XXV I.  507 

his  testimony,  states  himself  to  be  an  accomplice  of  the  accused, 
it  is  regular,  before  the- witness  is  attacked,  to  call  on  another 
Witness,  to  prove  that  the  first  had  related  the  facts  disclosed  in 
his  evidence,  immediately  after  they  had  happened,  and  to  slate 
other  confirmatory  facts;  and  such  evidence  is  to  be  considered 
as  substantially  given   in  reply.     State  v.  Tivitty,  2  Hawks,  449. 

15.  W  here  declarations  were  offered  as  evidence,  upon  the 
ground  of  having  been  mad"  in  th'e  presence  of  the  defendant, 
and  not  .  mtradicted  by  him,  and  it  was  proved  that  he  was 
partial1  '  ited  at  the  time,  it  was  held  to  be  properly  left 

to  the  jury  1  >  ascertain  whether  or  not  he  was  too  much  intoxi- 

-  and  understand  the  statement,  when  m 
v.  Per  i  -.  3  Hawk  .  377. 

Id.  In  a  criminal  prosecution,  where  there  is  no  disput         I 
own  ;rship,  title  pa]  violence  to  explain  the  m    ives  of  a 

party's  conduct.  Hence,  where  land  was  sold.  an. 1  : vendee 
got  into  actual  possession,  and  put  out  a  tenant  at  suff  ranc  ■.  in 
an  indictment  for  an  assault  in  thus  putting  nut  such  tenant, 
the  deed,  under  which  the  vendee  claiu  d,  wa  held  :  •  be  evi- 
dence P  r  him.     Stati  v.  Weeks,  1  Dev.,  135. 

17.  When  a  prison*  r  has  once  been  induced  to  confess,  by  the 
influenc  r,  i  onfessions  subsequently  • 

be  presui  I  to  pro  ;ee  1  from  th&same  influenc  ;,  until  the  contra- 
ry"be  clearly  shown;  and  while  this  presumption  remains  unan- 
swered sions  are  inadmissible  as  evidence.  State 
v.  Roberts,  1  Dev..  259. 

18.  Although  the  testimony  of  two  witn  i    said  to  be  ne- 

invicl  one  of  perjury,  yet  the  direcl  oath  oi  one  wit- 
ness, a  id]  fo  declarations  of  the'defendant,  inconsistent 
witn  the  oath  in  which  perjury  is  assigned,  are  sufficient  State 
v.  Molier,  1  Dev.,  263. 

lit.  An  accomplice  is  a  competent  witness  for  the  prosecution, 
on  the  trial  of  his  associate.     Statev.  Weir,  1   Dev.,  3G3. 

20.  1  he  .  '.stimony  of  a  witness,  in  a  criminal  prosecution,  who 
is  corruptly  false  in  any  particular,  should  be  entirely  disregard- 
ed by  tii  sjury;  and  where  they  were  instructed  that  they  might, 
in  the  ex  ;ri  i  ■  of  a  sound  discretion,  reject  part  of  the  testimo- 
ny which  they  did  not  believe,  and  act  on  part  which  they  did 

believe,  Id  to  1 rroneous.     State  v.  Jim,  1  Dev.,  508. 

(Overruled,  see  State  v.  Williams,  2. Tunes.  2">7.) 

2.1.  In  an  indictment,  under  the  act  of  1791,  for  neglecting  to 
keep  up  a  sufficient  fence,  it  was  held  that  the  act  introduced  no 
new  rule  of  evidence  as  to  the  kind  of  witnesses,  but  that  "in- 
different witnesses"  meant  "competent  witnesses."  State  v. 
Sawyer,  2  Dev.,  213;     (See  Rev.  Code,  ch.  34,  sec.  41.) 

■22.  On  a  trial  for  murder,  proof  that  a  written  paper,  found 
near  the  body  of  the  deceased,  was  given  to  the  prisoner's  son, 
a  little  boy,  for  the  use  of  his  father,  is  sufficient  for  the  paper 


508  EVIDENCE.— XXVI. 

to  go  to  the  jury,  with  instructions  to  disregard  it,  unless  satis- 
fied that  it  actually  carne  to  the  prisoner's  hands.  State  v.  Ar- 
thur, 2  Dev.,  217. 

23.  Co-defendants,  in  an  indictment.,  cannot  be  witnesses  for 
each  other,  unless  the  one  offered  has  been  acquitted  or  convic- 
ted, and  this,  although  their  trials  are  to  be  had  in  different 
counties.     State  v.  Mills,  2  Dev.,  420. 

24.  Whether  or  not  persons,  who  have  an  interest  in  property 
expectant  upon  the  life  estate  of  another,  are  competent  witness- 
es for  the  State,  in  a  capital  charge  against  the  tenant  for  life, 
they  are  certainly  competent  when  they  have  released  or  as- 
signed all  their  interest,  remote  or  contingent,  legal  or  equita- 
ble.    State  v.  Kimbrough,  2  Dev.,  431. 

25.  On  an  indictment  against  a  slave  for  a  capital  offence,  the 
master  cannot  be  compelled  to  testify;  and  it  is  doubtful  wheth- 
er, if  he  waived  his  privilege,  the'  slave  might  not  object  to  hav- 
ing his  confessions  to  his  master  testified  against  him  by  the 
latter.     State  v.  Charity,  2  Dev.,  543. 

2(i.  Evidence  that  the  prosecutor  was  actuated  by  malicious 
motives,  in  preferring  the  indictment,  is  not  admissible  on  the 
trial  of  the  indictment,  unless  he  be  examined  for  the  State. 
State  v.  Collins,  3  Dev.,  117. 

27.  Where  the  defendant,  in  an  indictment  for  petit  larceny, 
oilers  no  evidence  of  character,  the  jury  are  to  weigh  the  testi- 
mony, as  if  they  knew  nothing  against,  him,  except  what  was 
disclosed  on  the  trial.     Ibid,. 

28.  One  found  in  possession  of  a  forged  order,  in  his  own  favoi , 
is  presumed  either  to  have  forged  it,  or  procured  it  to  be  forged, 
until  the  contrary  is  shown.  State  v.  Britt,  3  Dev.,  122,  S.  1'. 
State  v.  Morgan,  2  Dev.  and  Bat,  348. 

2i).  Under  the  act  to  prohibit  the  retailing  of  spirituous  liquors 
by  the  small  measure,  it  is  incumbent  on  the  defendant  on  the 
trial  of  an  indictment,  to  show  the  existence  of  the  license  in  his 
defence.     State  v.  Morrison,  '■>  Dev..  299. 

30.  Where  A  was  indicted  for  an  offence,  it  was  held  not  to  be 
competent  lor  him  to  prove  the  declarations  of  B,  or  his  conduct, 
after  the  time  when  the  offence  was  committed,  to  prove  that  B, 
and  not  A,  was  guilty  of  the  offence.     State  v.  May,  4  Dev.,  328. 

31.  On  an  indictment  for  perjury,  it  is  not  necessary  for  the 
prosecution  to  prove  all  the  evidence  given  by  the  defendant  on 
the  trial,  wherein  he  testified.  It  is  sufficient  to  prove  all  the 
evidence  given  by  the  defendant  in  relation  to  the  fact,  on  which 
the  perjury  is  assigned.  Ingram  v.  Watkins,  1  Dev.  and  Bat., 
442. 

32.  When  it  appeared  upon  a  trial  for  murder,  that  the  de- 
ceased came  to  her  death  in  part  by  strangulation  with  a  rope, 
and  the  prisoner,  while  before  the  examining  magistrate,  but 
before  the  examination  had  begun,  said,  in  reply  to  a  bystander 


EVIDENCE.— XXVI.  509 

who  had  a  rope  in  his  hand,  "that  is  not  the  rope,"  upon  which 
the  magistrate  observed  to  the  prisoner,  "keep  that  to  yourself," 
it  wax  held  that  the  prisoner's  declaration  was  admissible  in  evi- 
dence against  him.  whether  he  desisted  from  speaking  further 
of  his  own  accord,  or  at  the  suggestion  of  the  magistrate.  State 
v.  Su-inl:  2  Dev.  and  Bat.,  9. 

33.  When  a  man,  who  is  at  full  liberty  to  speak,  and  not  in 
the  course  of  a  judicial  enquiry,  is  charged  with  a  crime,  and 
remains  silent,  that  is,  makes  no  denial  of  the  accusation,  either 
by  word  or  gesture.  Jus  silence  is  ;<.  circumstance;  which  may  be 
left  to  the  jury,  to  be  considered  together  with  other  circum- 
stances, in  deciding  npen  his  guilt.     Ibid. 

34.  In  criminal,  as  well  as  in  civil  eases,  the  whole  of  the  ad- 
mission or  declaration  made  by  a  party  is  in  be  taken  together. 
But  his  acts  or  declarations"  are  not  to  be  excluded,  because  not 
as  complete  as  lie  intended  they  should  be.     Ibid. 

35.  Every  circumstance,  however  slight,  that  is  calculated  to 
throw  light  upon  the  supposed  crime,  is  to  lie  considered,  al- 
though a  verdict  against  the  prisoner  cannot  lie  warranted  by 
any  combination  of  circumstances,  producing  less  than  full  as- 
surance  el'  his  guilt.     Ibid. 

36.  In  a  capital  case,  presumptive  evidence,  which  will  satisfy 
a  jury  beyond  a  reasonable  doubt  of  the  prisoner's  guilt,  which 
is  us  .In-  and  as  strong  as  the  testimony  of  one  credible  and  re- 

ible   witness,  is   sufficient   to   sustain  a  verdjet  of  guilty. 
Ibid. 

."i7.  To  repel  tin'  allegation  of  an  alibi,  it  is  relevant  to  prove 
that,  on  the  morning  after  the  offence  was  committed,  a  servant 
of  the  defendant  went  to  a  neighbor's  house  to  borrow  a  pair  of 
saddlebags,  and  returned  with  them  towards  home,  if  it  be  fur- 
ther proved  that  tic  defendant  was  seen  soon  afterwards  with 
a  pair  of  saddlebags,  going  in  a  direction  from  home.  States. 
Scott,  2  Dev.  and  Bat,  35: 

38.  Marriage  bet  \\  een  slaves  consisting  of  cohabitation  merely, 
by  permission  of  their  owners,  a  slave,  the  wife  of  another 
slave,  may  give  evidence  against  him,  even  in  a  capital  case. 
Still  more  will  she  be  a  competent  witness,  after  they  have  sep- 
arated, and  she  has  become  the  wife  of  another  slave.  Statu  v. 
Samuel,    2  Dev.  and  Bat,  177. 

39.  In  every  case  arising  upon  the  question  of  the  admissibil- 
ity of  husband  andwife,  as  witnessesdbr  or  against  each,  whether 
the  witnesses  be  called  by  the  one  side  or  the  other,- the  test, 
and  only  test,  of  competency,  is  this:  are  they  in  fact  and  in  law. 
husband  and  wife?     Ibid. 

40.  A  defendant,  in  attempting  to  prove  an  alibi,  cannot  give 
in  evidence  what  he  stated  to  a  witness,  who  saw  him  at  a  dis- 
tant place  at  a  particular  time.  State  v.  Morgan,  2  Dev.  and 
Bat.,  348. 


510  EVIDENCE.— XXVI. 

41.  In  a  prosecution  for  forgery;  the  forged  note  being  seen 
in  the  hands  of  the  defendant,  in  the  county  in  which  the  for- 
gery is  charged  to  have  been  committed,  is,  in  the  absence  of 
all  proof  where  and  by  whom  the  note  was  actually  forged,  suf- 
ficient to  justify  a  conviction.     Ibid. 

42.  Where  an  association  for  a  criminal  purpose  is  proved  to 
exist,  the  arts  of  one  of  the   associates  in  furtherance  of  that 

Eurpose,  as  well  as  his  declarations  in  respect  to  it,  are  admissi- 
le  against  1  he  others;  and  this,  where  the  aci  or  declaration  is 
subsequent  to  the  actual  perpetration  of  the  crime.  Stah  v. 
Haney,  2  Dev.  and  Bat,  390. 

43.  The  unsupported  testimony  of  an  accompltce,  if  it  pro- 
duce  entire  belief  of  the  prisoner's  guilt,  is  sufficient  to  warrant 
a  conviction;  and  the  usual  direction  to  the  jury  not  to  convict 
upon  it,  unless  supported  by  other  (testimony,  is  only  a  precau- 
tionary measure  to  prevent  improper  confidence  being  reposed 
in  it:  and  the  propriety  of  giving  this  caution  must  be  left  to 
the  discretion  of  the  judge  who  'tries  the  cause.  Ibid.,  S.  P. 
Statev.  Hardin,  2  Dev.  and  P..- it.,  407. 

-!  I.  In  burglary,  the  intent  to  steal  is  most  satisfactorily  proved 
by  an  actual  stealing.     State  v.  Jesse,  3  Dev.  and  Bat..  98. 

4">.  In  an  indictment  for  fornification  and  adultery,  one  who 
had  been  the  husband  of  the  A  ne  defendant,  but  ha  i  been  di- 
vorced from  her  cm  account  of  her  adultery,  is  incompe- 
tent to  testiftr  against  the  defendants,  as  to  the  adulterous  in- 
tercourse, or  any  fact  which  occurred  while  the  marriage  sub- 
sisted. And  if  the  testimony  were  received  at  the  trial  alter  ob- 
jection made  to  it,  and  the  defendants  were  found  guilty,  and 
the  man  alone  appealed,  it  is  not  thereby  made  compi  1  ml  against 
him.     Statt   v.  Jolly,  3  Dev..  and  Bat.  110. 

4(i.  The  possession  of  stolen  property  affords  presumptive  evi- 
dence that  the  risthethiei  and  the  evidence  is  stronger 
or  weaker  as  the  possession   is  more  or  less  recent,     A  recent 
i  ;           .,    reasonable   presumption    of  guilt.     State  v. 
Join  •■■  3  Dev.  and  Bat.,  12-2. 

47.  If,  in  attempt  ing  to  rebut  the  presumption  of  larceny  ari- 
sing from  the  recent  possession  of  stol  m  pn  perty,  it  be  proved 
that  the  defendant,  after  the  larceny,  found  thepropei  tyintl 
session  of  another  person,  from  whom  he  received  it.  claiming  it 
as  his  own,  hut  that  before  such  finding  he  gave  an  exact  de- 
scription of  the  stoteh  articles,  which  he  alleged  he  had  lost; 
that  he  made  diiferent  statements  to  different  persons  as  to  the 
time  he  had  lost  his  property;  that,  finding  the  property,  he  put 
false  marks  upon  it;  and  that,  afterwards,  he  left  the  State  in 
consequence  of  the  indictment;  all  these  circumstances  furnish 
evidence  tending  to  connect  the  defendant  with  the  felonious 
possession  of  the  property,  anterior  to  the  time  when  he  found  it 
.in  possession  of  the  other  person.     Ibid. 


EVIDENCE.— XXVI.  511 

48.  On  the  trial  of  an  indictment  for  forgery,  the  person,  whose 
name  is  charged  to  have  been  forged,  and  whose  interest,  sup- 
posing the  instrument  to  be  genuine,  is  affected  by  it,  eitheras  an 

on  or  acquittance,  is  not,  while  the  instrument  remains  in 
forci  a  competent  witness  to  prove  the  forgery  State  v.  Hlmt- 
tan,l  Ired.. 424.  (Such  person  is  now  made, a  competent  witness 
to  prove  the  forgery.     See  Rev.  Code,  ch.  35,  sec.  22.) 

49.  On  an  indictment  for  bigamy,  the  second  wife  is  admissi- 
ble as  a  witn  •  -.  eithi  r  For  or  againsl  the  prisoner.  State  v.  Pat- 
terson,  2  Ired.,  34(1. 

50.  Whether  the  trial  of  two  or  more  defendants  in  an  indict- 
ment be  joint  or  separate,  one  of  the  defendants  cannot,  until 
finally  discb  d,  1  witness  for  another,  and  wh  rer  the 
wife  of  one  o  ted  to  t<  tify  for  the  ot hen  on  a  joint 
trial,  she  will  no1  be  re<  ivad  for  them,  although  hei  husband 
be  not  then  on  trial.     States.  Smith,  2  Ired.,  402. 

5L  The  declarations  of  the  d  in  an  indictment,  are  ad7 

missible  in  evidence  on  the  part  of  the  prosecuti :ompa? 

aying,  explaining  and  characterizing  the  acts  charged.  Slate  v. 
Huntly,  3  In  d.,  418. 

52.  In  an  indictment  againsl  an  overseeV  for  the  murder  of 
his  employer,  itis  not  competent  for  the  prisoner  to  give  i  vidence 
of  the  general  temper  and  deportment,  of  the  decea  ed  'towards 
his  overseers  and  tenants.     State  v.  Tilly,  3  Ired.,  424. 

53.  Itis  not  competent  for  a  prisoner,  indicted  for  murder, 
to  give  in  evidence  his  own  account  of  the  transaction,  related 
immediately  after  it  occurred.     Ibid. 

54.  A  judgment  having  been  obtained  before  a  justice  against 
A  and  his  surety  B,  of  which  B  paid  a  part  and  took  the  con- 
stable's receipt,  which  he  fraudulently  altered  so  as  to  make  the 
sum  larger,  and  A  having  afterwards  settled  with  B,  arid  paid 
him  the  larger  amount  appearing  on  the  recei]  held,  in 
an  in-  a  osl  !'•  for  the  forgery,  thai  ipetenl 
witnes  i  for  tfo   .                       v.       iteman,  3  Ired.,  474. 

.">.">.   On  the  trial  of  an  indictment   for  a  ttery,  in 

order  to  show  some  motive  of  resentment  on  th  part  of  the  de- 
fendant, it  was  competent  for  the  State  to  pro  .  th  e  prose- 
cutor had  said  in  the  defendant's  bearing,  a  hori  time  before, 
"that  no  honest  man  would  avail  himself  of  the  bankrupt  law," 
and  then  to  prove  further  that  the  di  fondant's  lather  had  been 
talking  al  i1  i.  I  in  ;  he  I  m  £il  of  th  ;  law.  State  v.  Griffis,  'A 
Lred.,  504. 

56.  Although  the  po  ■  sion  of  a  stolen  article  may  not  be  so 
after  a  theft,  as  of  itself  to  raise  a  legal  pri  sumption  that 
the  p  is  ■■  ssor  stole  them,  yet  it  may  be  considered  by  a  jury  as  a 
circumstance,  to  be  weighed  toe-ether  with  other  circumsl  riceB, 
in  deciding  upon  the  question  of  the  possessor's  guilt.  Slate  v. 
Lt/fle,  5  Ired.,  58. 


512  EVH)ENCE.^-XXVI. 

57.  On  an  indictment  for  passing  a  forged  bank  note,  a  witness 
is  competent  to  prove  that  the  note  was  counterfeit,  who  had  for 
ten  years  been  employed  as  cashier  of  a  bank,  who  had,  in  that 
capacity,  received  and  passed  away  a  great  number  of  the  notes 
of  this  bank,  without  ever  having  had  one  returned  as  a  coun- 
terfeit, and  who  swore  that  he  believed  he  could  readily  distin- 
guish between  a  genuine  and  a  counterfeit  note,  not  only  from 
the  handwriting  of  the  signatures-,  but  also  from  the  paper,  en- 
gravir.e-  and  general  appearance  of  the  note.  State  v.  Harris.  ."> 
Ired.,  287. 

58.  A  witness  for  the  State,  on  the  trial  of  an  accessory  before 
the  fact,  in  a  capital  case,  being  asked  by  the  defendant  whether 
he  I',;. I,  before  the  examining  magistrate,  staled  certain  facts  he 
was  then  narrating,  replied  that  he  had  not,  having  been 
terred  by  the  threat  of  theprincipalvand  was;proceeding  testate 
the  conversation  between  himself  and  the  principal,  when  the 
defendant  objected  to  the  evidence,  but  it  toas  held  admissible. 
State  v.  Duncan,  (i  Ired.,  98. 

.V.i.  Where  a  principal  and  an  accessory  are  tried  separately, 
though  on  the  same  indictment,  evidence  of  the  conviction  of 
the  principal  is  not  admissible  on  the  trial  of  the  accessory,  unless 
judgment  has  heen  first  pronounced  against  the  principal,  and 
exists  at  tin.'  time,  not  having  been  vacated  by  appeal.  Ibid. 
(The  law  on  this  subject  has  been  altered  and  amended.     Sec 

Revised  <  'ode,  eh.   .",!-.  see.   53.) 

60.  Evidence  on  the  part  of  a  prisoner,  indicted  as  an  acces- 
sory in  murder.  1  li.it  he  was  a  man  of  violent  passions,  and  often 
iii  the  habit  of  using  threatening  language,  intended  to  rebut  the 
presumption  arising  from  his  threats  against  the  deceased,  is 
irrelevant  and  inadmissible.     State  v  Duncan,  6  Ired.,  236. 

(il.  Threats  of  other  persons  against  the  deceased,  or  admis- 
sions by  them  that  they  had  killed  him.  are  (inly  hearsay  and 
cannot  be  received  in  evidence.      Ibid. 

On  a.  trial  for  rape,  (he  prisoner  may  give  in  evidence  that  the 
woman  had  been  his  concubine,  or  that  he  had  been  suffered  to 
take  indecent  liberties  with  her.  But  he  cannot  give  in  evi- 
den  e,  in  order  to  prove  her  a  strumpet,  that  she  had  had  crimi- 
nal connection  with  one  or  more  particular  individuals.  It  is  a 
euiestion  of  character,  and  the  evidence,  as  in  other  questions  of 
character,  must  be  of  a  general  nature.  State  v.  Jefferson,  6 
Ired;,  305; 

(>.">.  On  a  trial  for  rape,  the  acts  and  declarations  of  the  hus- 
band of  the  won. an.  on  whom  the  offence  is  alleged  to  have  heen 
committed,  are  not  admissible  to  discredit  the  wife,  who  had 
been  examined  as  a  witness.      Ibid. 

64.  A  confession  made  by  a  prisoner,  while  in  prison,  is  evi- 
dence against  him,  provided  it  be  the  prisoner's  own  act,  not 
unduly  obtained  by  promises  or  threats.     Ibid. 


EVIDENCE.— XXVI.  513 

65.  A  grand  pirormay,  on  the  trial  of  an  indictment,  lie  com- 
pelled ti>  disclose  what  was  uiv.-n  in  evidence  by  a  witness  be- 
fore the  grand  jury.     State  v.  Broughton,  7  [red.,  86. 

(iii.   Although  a  prisoner,  who  lias  been  examined  on  oath  be- 
fore a  justice,  shall  not  be  subjecl  to  have  his  examination  usi  d  hi 
evidence  againsl  him  on  his  trial,  yet  whi  rea  grand  jury  are  in- 
iting  an  offence  with  a  view  to  discover  the  perpetrator, 
an  1  the  person,  who   was  subsequently   indicted,  was  examined 
them  on  oath,  aud  charged  a  on  wil  li  the  com- 

imination  ma ;  be  given  in  evidence 
:r  on  the  trial  of  his  indictment.     Ibid. 

67.  In  an  indictment  for  a  libel,  charging  that  the  ^prosecutor 
"was  called  a  murderer  and  forsworn,"  it  is  not  competent  for 
the  defendant  to  justify  by  proving  that  there  was  and  long  had 

i  general  report  i  >   the  neighborhood  thai  the  prog 

was  a  "i  ird   reran  I  I        '   >rn  Stati  v.  White,!  [red.,  180.  (Sec 

Ltev.  i  26.) 

68.  '  uninal  ion    of  a  prison  i-  ac- 

ius  night,  told 

him  "that  unl  r  in  which  he 

hi<  h   was  found  on   him,  he 

•  him  to   li  ■  i  fcealing  it."  it 

i  iiini   to  sn  ih  a    thn  ut  or  inn 

the  m  of  the  subsequent  confession 

■  !.  especially,  as  the  magi  trate  repeatedly  warned 

him  not  to  c  tnmil        i     :         any  confession.     Slate  v.  Cowan,! 

[red.,  i 

69.  \  rial  of  an  ind  foi  murder,  the  pris- 

i  at  the  time  to  extenu- 
i  prove,  in  order  to  show 
thai  ii'         li  "i  the  i  am  i  Liate  provocation,  but  from 

previou  mer,  a  year  or  a  month  previously, 

had  d  sclare  I  Iris  in(  mtion  to  kill  two  or  three  men,  it  being  ad- 
mitted that  the  pri  n     rence  in  such  threats  to  the 

■     -  Id,  7  [red.,  299. 

70.  Th  lc  :omplice  are  evidence 

i  ii  of  the  res  gestae,  and  done  in  furtherance  of 

m  i  Bui  to   in   ke  the  acts  or  declarations  of 

!  i  prisoner,  a  conspiracy  or  com- 

mon  design  ;  i    tablished.     State  v. 

.  7  [re  1.,  321. 

71.  A  deed  for  land,  duly  proved  and  r  ii  b  t  i.  is  evidence, 
under  the  statute,  of  th  upon  every  occa- 
sion on  which  ii  may  1 ffered;  as.  for  instance,  upon  the  trial 

of  an  indictmem  for  murder.     Statt  v.  Sk  oherd,  8  [red:,  l'.t.r>. 

72.  On  a  trial  for  murder,  evidence  of  the  general  character 
and  habits  of  the  deceased,  as  to  temper  and  violence,  cannot 
be  received;  and  the  only  exception  to  the  rule,  it'  there  be  oney 

33 


514  EVIDENCE.— XXVI. 

is  where  the  whole  evidence  as  to  the  homicide  is  circumstan 
tial.     State  v.  Barfidd,  8  [red,  344. 

73.  Where  the  State,  in  a  prosecution  for  homicide,  relies 
upon  the  ground  of  express  malice,  the  witness  can  only  prove 
the  existerxa  of  previous  mali  e  or  threats,  but  lie  cannot 
prove  the  existence  of  the  malice  up  to  the  time  of  the  homi- 
cide, and  that  the  prisoner  acted  on  it  in  slaving-.  It  is  the  pro- 
vince of  the  jury  to  make  Mies-  inferences  or  not,  from  the  facts 
proved      Statev.  Hildreth,  9  [red.,  429. 

74.  It  is  a  general  ride  that  the  declarations  of  a  party  ac- 
cused of  a  crime,  made  in  his  own  favor,  after  the  time  oi  thi 
alleged  commission  of  the  crime,  are  not  evidence  for  him. 
I  hid. 

75.  Where,  on  an  indictment,  the  defendant  pleads  a  former 
conviction,  it  is  competent  for  him  to  prove  by  one  who  was  not 
■a  witness  on  the  former  trial,  what  a  witness,  who  was  exam- 
ined on  behalf  of  the  State  on  that  trial,  di  posed  to,  though  that 
witness  be  still  alive,  and  within  the  jm  [,  diction  oi'  I  !>.<■  court,  in 
order  to  show  the  identity  of  the  cases.  State  v.  Smith,  11 
Ired,  33. 

76.  In  order  to  make  the  declarations  of  a  deceased  person 
evidence,  as  dying  declarations,  it  is  not  necessary  that  the  per- 
son should  be  in  the!  very  act  of  dying;  it  is  sufficient  if  he  he 
under  the  apprehension  of  impend  ug  di  :olution.  Stat  v. 
Tilghman,  11  ired,  513. 

77.  A  witness  cannot  be  admitted  to  state  that  "  he  thought 
that  the  deceased  thought  he  would  not  die  from  his  wounds." 
He  cannot  give  his  own  opinion,  but  only  d  >pose  to  the  state  of 
the  wounds  of  the  deceased,  and  wh  it  he  then  and  then  said  and 
did,  from  which  the  court  may  decide  what  he  thought  of  his 
condition.     Ibid. 

78.  It"  the  deceased,  at  the  time  he  made-  the  declarations,  was, 
in  fact,  in  a  condition  to  make  them  ci  mpetent  evidence,  a  hopi 
of  recovery  at  a  subsequent  time  would  not  make  them  incom- 
petent.    Ibid. 

79.  On  an  indictment  for  perjury  in  swearing  that  A,  one  of 
several  assailants  in  an  affray,  struck  the  defendant,  when  it  ap- 
peared that  A  did  not,  but  another  assailant  did  strike  tin;  blow. 
it  was  competent  for  the  defendant,  in  order  to  disprove  a  cor- 
rupt motive,  to  show  that,  immediately  on  his  recovery  from  the 
unconsciousness  caused  by  the  blow,  lie  had  given  the  same  ac- 
count of  the  transaction  which  he  did  in  his  testimony  before 
the  court,  on  the  trial  of  the  case  in  which  the  perjury  was  as- 
signed.    Statev.  Curtis,  1~2  Ired.,  270. 

80.  On  a  trial  for  murder,  charged  to  have  been  committed  by 
a  husband  on  his  wife,  the  State,  for  the  purpose  of  showing 
malice,  has  a  right  to  prove  a  long  course  of  ill  treatment  by  the 
husband  towards  his  wife.     And  whether  an  alleged  subsequent 


EVIDENCE.— XXVI.  515 

econciliation  between  the  parties  was  real  or  pretended,  so  as 
to  affect  the  question  of  malice,  is  a  matter  for  the  decision  of 
the  jury.     State  v.  Rash,  12  Ired.,  382. 

81.  Proof  of  the  declarations  of  the  deceased  wife,  offered  by  the 
husband,  that  she  had  been  guilty  of  adultery,  was  properly  re- 

by  the  court,  because  it  was  irrelevant   to  the  issue,  and 
■  i;  would  have  gone  strongly  to  prove  the  malice  charged 
on  the  husband,     ibid. 

82.  Where  there  was  a  conspiracy  to  commit  an  offence,  it  is 
not  competent,  on  the  trial  of  one  of  the  conspirators,  to  give  in 
evidence  the  declarations  of  another  conspirator,  made  after  the 
offence  had  been  committed;  because  they  were  not  made  in 
furtherance  of  the  common  design.     State  v.   Dean,  13  Ired.  63. 

83.  On  the  trial  of  an  indictment  for  murder,  when  the  dy- 
ing declaration  of  the  deceased  was,  that  "A  B  has  shot  me,  or 
has  killed  me,"  the  courl  must  presume  prima  facie,  that  thede- 

:  intended  to  state  a  tact,  of  which  he  had  knowledge,  and 
not  merely  to  express  an  opinion;  and  the  jury  must  jud  i  of 
thi'  weight  of  this,  as  of  other  evidence,  by  the  a  icompanying 
circumstances.  If  he  merely  meant  to  express  his  opinion  or 
suspicion,  the  jury  should  disregard  it  as  evidence  in  itself 
State  v.  Arnold,  13  Ired..  184 

84.  When  the  defence  on  indictment  for  murder  is.  that  the 
prisoner  was  under  the  age  of  presumed  capacity,  the  ontis  of 
proof  lies  upon  the  prisoner;  and  if  the  age  can  be  ascertained 
by  inspection,  the  court  and  jury  must  decide.     Ibid. 

85.  On  the  trial  of  an  indictment  for  murder,  the  affidavit  of 
the  deceased,  though  not  taken  according  to  the  acl  of  1715,  is 
competent  and  proper  evidence  as  a  dying  declaration.  Ibid. 
(See  Rev.  Code,  ch.  35,  sec.  1.) 

86.  Though  the  examining  magistrate,  before  whom  a  pris- 
oner charged  with  !'  lony  i  ■  brought,  does  nol  rednce  the  exami- 
nation tii  writing,  as  it  is  his  duty  to  do,  yet  evidence  may  be 
given  of  such  prisoner's  confessions  at  the  time.  But  to  render 
such  evidence  admissible,  it  must  appear  that  the  committing 
magistrate  did  not  take  down  the  examination  in  writing-,  or 
that  the  same  is  lost.     State  v.  Parish,  Bush,  239. 

87.  Where  a  ma    i    rate  was  called  to  testify  to  confessions  of 

t  on  a  cha  side,  and  star- 

ted that  he  enquired  of  the  pri    mer  hovi  arere,  andthe 

evidence  being  objected  to  by  ■  ■'      ounsel,  the  witness 

stated  that  the  ■  were  voluntarily  made,  whereupon 

the  judge  allowed  the  a  I  i  be  given.in  evidence  "  wo  i  /'''/that 
i  loner's  counsel  was  not  bound  to  apprise  the  solicitor  for 
the  Stat",  nor  the  court,  of  the  grounds  of  his  objection,  and  was 
not,  therefore,  precluded  from  insisting  in  the  supreme  court  on 
the  objection,  tnal  there  was  no  proof  that  the  prisoner's  exami- 
nation was  not  reduced  tu  writing:.     Ibid. 


51(5  EVIDENCE.— XXVI. 

88.  On  an  indictment  against  a  husband  for  the  murder  of 
his  wife,  it  is  proper  for  the  Slate  to  ask  their  daughter,  whether 
her  father  and  mother  did  not  "quarrel,"  without  asking  her 
what  they  said.     Statev.  Langford,  Busb.,  436. 

89.  Whether  the  inference  against  (In-  credit  of  a  female  wit- 
ness, called  to  prove  a  rape,  arising  from  her  failure  to  make  an 
outcry,  is  repelled  by  the  other  concurring  facts,  is  not  a  conclu- 
sion of  law  to  be  decided  by  the  judge,  but  is  a  question  el'  Fact 
to  be  submitted,  with  proper  instructions,  to  the  jury.  Stati  v. 
<  'one,  1  Jones,  18. 

'.hi.  Where  the  deceased,  who  was  very  badly  wounded  and 
very  weak  from  the  less  of  blood,  said  that  he  must  die,  and  did 
die  two  days  afterwards,  of  the  wounds  which  he  had  receive. I, 
it  was  hih]  that  his  account,  in  a  short  conversation,  as  to  the 
manner  in  which  the  conflict  began  and  was  continued  between 
him  and  the  prisoner,  was  admissible  as  dymg  declarations,  al- 
though the  witness  could  not  say  whether  the  opinion  exprei  sed 
by  the  deceased,  "that  he  must  die,"  was  before  or  after  the 
narration  of  the  facts;  there  being  no  evidence  that,  during  the 
time  of  this  conversation,  the  condition  of  the  dec<  ased  was  ma- 
terially changed.     Statev.  Pratt,  1  Jones,  251. 

91.  To  bring  a  ease  within  the  operation  of  the  rule  in  crimi- 
nal trials  of  no,  fdlsurn  in  omnibus,  the  oath  must  be 
corruptly  false  in  regai'd  to  a  matter  material  to  the  issue.    Ibid. 

\^2.  The  possession  'if  stolen  goods,  shortly  after  the  theft,  is  a 
circumstance  to  be  left  to  the  jury  in  passing  upon  the  guilt  of 
the  accused,  and,  however  slight  it  may  have  become  by  length 
of  time,  the  court  cannot  disregard  it.  State  v.  Williams,  2  .'ones. 
194. 

93.  The  maxim  ufalsum  h  in  on  &««,"  is  in  a 
common  law  trial,  anil,  even  in  a  capital  ease,  to  be  applied  by 
the  jury,  according  to  their  own  judgment,  for  the  ascertainment 
of  truth,  and  is  not  a  ride  of  law,  by  virtue  of  which  the  court 
may  withdraw  the  evidence  from  the  jury,  or  direct  them  to 
disregard  it  altogether.  State  v.  WiUiams,  2  denes,  257,  (Battle 
J.,  dissenting  in  part.) 

94.  Every  material  averment,  whether  affirmative  or  negative, 
necessary  to  constitute  a  substantive  offence,  must  be  charged 
in  the  indictment,  and  proved  on  the  trial  bythe  Stale.  There- 
fore, where  it  was  alleged  in  an  indictment,  that  the  prisoner  did 
carry,  convey  and  conceal  a.  slave,  with  nii  tlve  consent  in  writing 
of  f lie  owner  of  such  slave,  with  the  intent  that  he  should  escape 
beyond  the  limits  of  the  State,  it  was  held  to  be  incumbent  on  the 
State,  to  prove  that  such  notice  in  writing  was  not  given.  State 
v.   Woodly,  '1  Jones,  27<>. 

95.  Dying  declarations,  on  a  trial  for  homicide,  must  be  re- 
stricted to  the  act  of  killing,  and  the  circumstances  immediately 


EVIDENCE— XXVI.  M7 

attending  the  net  and  forming  a  part  of  the  res  gestce.  State  v. 
Shelton,  -  Jones,  360. 

96.  It  is  not  a  rule  of  law  that  the  evidence  of  a  witness,  who 
has  made  an  intentional  mis-statement,  must  be  rejected  alto- 
gether.    State  v.  NMett,  "-'  Jones,  418. 

'J7.  On  the  trial  of  an  indictment  for  murder,  if  it  he  shown 
by  tin'  prisoner  that,  about  a  fortnighl  before  the  homicide,  he 
was  laboring  under  deli  lens,  from  which  he  partially 

recov<  the  burden  is  still  upon   him  to  prove  that  he  was 

insane  at  tie  time  the  fatal  act  was  committed;  fur  the  disease  of 
irally  but  a  temporary  insanity,  tin- 
law  will  not  presume  that  ir  continued  up  to  the  time  of  the 
homicide.     State  v.  S  well,  '■'<  Jones,  245. 

98.  Where  the  person,  who  had  formerly  hired  the  prisoner, 
who  was  a  slave,  said  to  him  that  he-  might  as  well  tell  all  aboul 
the  homicide,  for  ho.  the  witness,  "was  satisfied  about  it."  and 
repeated  tin;  several   tinfes,  and  each  time  the  prisoner  denied 

a  id  the  witnessalso  said,  while  he  was  a  littleangry, 

••if  yon       !  to  me,  I  would  m  bell,"  but  the  pris- 

tied  the  charge,  hu1  afterwards,  of  his  own  accord, 

took  tii'.-  witness  aside  :  ad    i  u  full   disclosure,  it  was  held 

that  the  confi     ion  was  admissible.     State  v.  Patrick,  3  Jones; 

99.  Although  tb  on  of  stolon   goods,  after  a  certain 

■  a  presumption  of  the  possessor's 
guilt,  yet,  it  is  a  circumstance  which  may  properly  be  consid- 
ered by  the  jury,  togotlu-r  with  other  circum  red  in 
lilt  of  the  accused.     ,  'tate  v.  Shaw, 
4  Jones,  440. 

100.  The  defendant,  in  an  indictment,  has  always  a  right  to 
give-  his  character  in  evidence,  ti  be  weighed  by  the  jury,  whether 

i-  be  called  a  plain  or  a   doubtful  one.     Sf<ite  v.  H 

•  loll    IS,    li"). 

KM.    When  ores  were   indicted   for  murder,  one  as 

principal  and  tin-  others  as  aec  issories  before  the  fact,  and  it  ap- 
peared that  while  the  three-  were  in  irons  and  surrounded  by  a 
o;d  angry  crowd,  the  principal  was  struck  in  the  face  by 
a  person  much  excited,  ami  bidden  to  tell  all  about  it,  and  the 
prisoner  on  trial  was  bidden  to  tell  about  it,  or  they,  the  crowd, 
would  hang  him,  it  was  held  that  confessions  made  by  him  about 
an  hour  afterwards,  but  before  the  crowd  was  dispersed,  were 
inadmissible  against  him.      Stair  v.   Grurijr,  5  Jones,  I'.'i.'i. 

102.  The  allegation  of  a  want  of  <>  permit,  in  a  bill  of  indict- 
ment for  selling  and  delivering  spirituous  liquor toa  slave,  must 
Be  proved  on  the  part  of  the  State.  States.  Evans,  5  Jones,  250. 
(The  burden  of  proof  subsequently  imposed  on  the  defendant,  who 
had  to  showthat  there  was  a  written  permit.  Act  of  1860,  eh.  3.r>.) 

103.  A  judge  has  no  right  to  compel  a  defendant,  in  a  crimi- 


518  EVIDENCE.— XXVI. 

nal  prosecution,  to  furnish  evidence  against  himself,  by  exhibit- 
ing himself  to  the  inspection  of  the  jury,  for  the  purpose  of  ena- 
bling them  to  determine  his  status  as  a  free  negro.  State  v.  Ja- 
cobs, 5  Jones,  259. 

104.  Where  confessions,  which  had  been  illegally  obtained 
from  one  accused  of  a  homicide,  were  stated  to  him,  by  the  per- 
son to  whom  they  were  made,  to  bave  been  wrongfully  obtained, 
and  he  was  told  that  they  could  not  be  used  against  him.  ami 
was  cautioned  against  making  any  further  confessions,  it  was 
lipid  that  voluntary  confessions,  subsequently  made  by  the  pris- 
oner, were  admissible  against  him.  States.  Gregory,  5  Jones,  315. 

105.  Where  a  person,  charged  with  a  crime,  has  received  a 
proper  caution,  by  which  he   i     ip]  ri    d  that  his  confessions, 

fter  made,  may  be  used  against  him,  what   he  afterwards 
bout  the  crime  is  admissible,  although  he  may  have  for- 
merly made  confessions,  which  had  been  extorted  b; 
induced  by  promises.     State  v.  Scates'b  Jones,  420. 

106.  Where  it  was  proved  that  a  burglary  had  been  committed 
by  negroes,  among  whom  one  of  the  witnesses  thought  be  saw 
the  prisoner,  who  was  a  negro  slave,  it  ivas  held  that  it  might  be 
proved,  on  the  pari  of  the  State,  that  the  prisoner  was  one  of  a 
gang  of  runaways,  who  had  a  camp  in  a  swamp  m  ar  the  house 
where  the  felony  was  committed.     State  v.  Bill,  <!  Jones,  34. 

107.  Where  defendants  were  indicted  for  a  riot  and  for  a  bat- 
tery on  a  slave,  and  relied  upon  declarations  made  by  them,  at 
the  time  of  committing  the   offence,  that  they  were  patrols;  it 

ir  the  court  to  instruct  the  jury,  that  the 
1'act  of  not  producing'  on  the  trial  any  e,  ord  or  other- 

wise, of  their  being  patrols,  raised  a  presumption  against  them. 
State  v.  Atkinson,  <>  denes.  <>.">. 

108.  The  flight  of  a  slave,  charged  with  a  capital  offence,  is 
evidence  against  him;  tor  it  will  net  be  presumed  that  his  mas- 
ter caused  him  to  attempt  to  make  his  escape.  State  v.  Nat,  (> 
Jones,  114. 

109.  On  an  indictment  for  murder,  the  prisoner  is  presumed 
to  be  of  sound  mind,  until  the  contrary  is  proved;  and  as  the 
proof  is  to  come  from  him,  the  rule,  as  to  a  reasonable  doubt  in 
his  favor,  does  not  apply,  lie  must  prove  that  fact,  as  he  has  to 
prove  any  other  material  allegation  necessary  to  his  defence.  State 
v.  Starling,  <i  Jones,  366. 

110.  In  a  trial  for  murder,  the  character  of  the  deceased  is 
not.  as  a  general  rule,  involved  in  the  issue,  and  evidence  of  it, 
therefore,  is  not  admissible  on  behalf  of  the  prisoner.  State  v. 
Hague,  6  Jones  381. 

111.  It  seems,  that,  when  it  is  necessary  for  the  accused  to  ac- 
count for  the  fact  that  he  began  a  sudden  mutual  affray  with  the 
use  of  a  deadly  weapon,  he  may,  in  order  to  repel  the  inference 
of  malice  arising  from  that  fact,  show  that  his  adversary  was  a 


EVIDENCE— XXVI  519 

powerful,  violent  and  dangerous  man.     State  v.   Floyd,  G  Jones 
392 

112.  Evidence  offered  on  a  criminal  trial,  which  is  proper  only 
tn  establish  an  incidental  matter,  but  which  is  not  offered  or 

nirpose,  but  as  affecting  the  issue  directly,  may 
■  1  by  the  court.     State  v.  Neville,  6  Jones  423. 

113.  It  i  ms  that  a  prisoner  may  offer  proof  ofa  hereditary  in- 
sanity in  his  allegation  that  he  was  nim- 

\  lien  he  commitl  puted  offence,  but,  to  be 

in  i he  members  of  the 

family  alleged  to  ha-,  i   been  .-  fflicted,  and  must  have  been  of  the 

ind  as  that  alleged   in   himself.     State  v.  Christmas,    6 

114.  Where    ■  ■  orted  from  a  prisoner  by  vio- 

fterwards,  when  actui  under 

which    lie    ma  '     the  former  con!'  nade  other  ci 

it  the  i   admissible  against 
him.     Stat  v.  Fish  r,  6  Jones  478. 

11").  for  de  troj  ing  an 

official  paper  which  he  had   in  hi  it  h    said  to  the 

he  day   afti        I  a    :r,  giving  his 

:  it,  is  not  i                    n  evi- 

7.  Black,  6  Jones  510. 

116.  ired  from  the  neighbor- 

that  she  had  been 
rmirdeivd,  and  her  body  co  srtain  metallic  ar- 

ig  the  ashes, 

a  large  quantity  i  burned,  if  was  I   Id,  to 

i   it,   for  the  purpose   of  ■  r  identity,  to  show 

that  tl.  i'1  worn  sui  h  things  previously  to 

her  disappearance,  and  that  the  length  of  time  elapsing  between 

the]     iod  of  her  wearing  such  articles,  and  oi  lier  dis 

■    the   torce  of  the  1  'stimony,  but  could  not 
7  Jones  44(1. 

117.  The  ru]  seems  at  one  time  to  have  prevailed  in 

I.   "thatupon  charges  oi    homicide,  the  accused  shall 

doI    b     convicted  unless  the   death  be  first   distinctly  proved, 

either  by  direel  evidence  of  the  fact,  or  by  inspection  of  the 

is  now  held  not  to  be  of  universal  application,  but  where 

itity  of  the  body  is  completely  destrojei  by  fi      i  rother 

'..  as  well  as  other  parts  of  the  case,  may 

be  proved  by  presumptive  or  circumstantial  evidence.     Ibid. 

118.  In  order  to  show  the  mischievous  intent,  with  which  an  incen- 
diary publication  v.  as  delivered  to  the  person  mentioned  in  the 
indictment,  it  is  competent  to  prove  that  the  defendant  had, 
before  that  time,  sold  and  delivered  other  copies  of  the  same 
work  to  other  persons.     State  v.   Worth,  7  Jones,  488. 

119.  The  inference  arising,  against  the  truth  of  a  charge  of 


520  EVIDENCE.— XXVI. 

rape,  from  the  long  silence  of  the  female,  is  not  a  presumption 
amounting  to  a  rule  of  law,  but  is  only  a  circumstance,  which  is 

to  submitted  along  with  the  other  circumstances,  for  the  consid- 
eration of  the  jury.     State  v.  Peter,  8  .'ones,  19. 

120.  The  maxim  of  falsum  in  uno,  falsitm  in  omnibus,  does  net 
prevail  in  courts  of  law ;  the  fact  that  a  witness  has  sworn  falsely, 
in  one  particular  pies  to  his  credibility,  and  not  to  the  compe- 
tency of  his  testimony  as  to  other  matters.  State  v.  Smith,  * 
Jom's,  132. 

121.  Possession  of  a  stolen  article  raises  a  presumption  that 
the  possi  or  is  the  thief,  only  in  case  such  possession  is  so 
recent  after  the  time  oi  the  theft,  ai  'oat  the  possessor 
could  not  well  have  come  by  it  otherwise  than  by  stealing  it.  In 
other  ca  es,  the  pi  ion  i  f  the  stolen  article  is  only  a  circum- 
stance to  be  submitted  to  the  jury,  along-  with  other  cir<  umstances 
tending  to  prove  tl  oi  larceny.  Gregory  v.  Richards,  8 
Jones,  410. 

122.  No  declarations  oi  ler    n    I        ter  the  commission 
of  a  homicide,  as  to  the  manner  in  which  it   was  comi 
which  are  not  pari  of  the  res*     te,  are  admissible  in  evidenci  tor 
him.     State  v.  Brandon,  *  denes.  lii;i. 

123.  The  hnv  doi  i  -  nize  any  ij  ■,  as  compel- 
lingamanto  do  what  he  knows  (oho  wrong.  To  make  insanity 
a  defence,  it  must  be  proved  to  have  been  a  mental  disease,  which 
prevented  tie'  accused  from  knowing  the  nature  and  quality  oi' 
the  ad  which  ho  comm.i1  ted.     Ibid. 

124.  Where  a  person,  suspected  of  a  murder,  was  arrested  and 
brought  b  fore  a  jury  of  inquest  as  a  witness,  and  was  subjected 
to  a.  rigid  examination,  it  was  held  that  his  examination  wa  no1 
compi  Lent  evidence  against  him  on  a  trial  for  the  nfi    nc 

v.   Young,  1  Winst,  126. 

125.  Where,  on  a  trial  foi-  a  capital  offence,  the  prisoner  filed 
an  affidavit  lor  the  continuance  of  his  cause,  on  the  ground  of 
tic  absence  of  a  material  witness,  the  court  cannot,  without  the 
consent  of  the  prisoner,  order  the  affidavit  to  lie  read  in  evidence 
for  him,  with  leave  to  the  State  to  offi  r  testimony  in  contradic- 
tion.    States.  Twiggs,  1  AYinst.,  142. 

12li.  Where  a  defendant,  in  a  criminal  prosecution,  offered  in 
defence  proof  of  Ihe  character,  which  he  sustained  at  the  time 
of  the  alleged  offence,  it  was  held  to  be  error  to  permit  the  State 
to  offer  evidence  of  his  character  at  a  subsequent  time.  Stale  v. 
Johnson,  1  Winst.,  151. 

127.  Property  proved  to  have  been  stolen,  found  in  a  house 
occupied  exclusively  by  the  defendant  and  his  wife,  is  found  in 
the  possession  of  the  defendant,  and  such  possession  is  evidence 
tending  to  prove  the  defendant's  guilt.  State  v.  Johnson,  1 
Winst.,  238. 

128.  An  admission  by  a  defendant,  indicted  under  the  act  of 


EVIDENCE.— XX  VI.-XXVII.-XXVIII.  521 

1863,  for  aiding,  assisting,  harboring  and  maintaining  a  de- 
serter, that  the  person  so  aided,  &c,  !  I  m  ed  to  Oapt.  G's  com- 
pany in  the  army,  that  he  had  been  at  defendant's  house  two  or 
three  weeks,  and  defendant  believed  he  was  absent   from  the 

army  without  leave,  in  the  abeem fall  other  proof,  is  not 

ornpetei  i     rove  that  the  pi  i  on   aided,  &c,  was  a 

soldier  in  the  army  of  the  confederate  States,  or  that  lie' was  a 
desei  .  L  wis,  1  Win  t.,  307. 

129.  The  admission  of  a  partj  to  a  suit,  civil  or  criminal,  per- 
tinent to  the  issue,  maybe  given  in  evidence  against  him  by 
the  oth  t  party.     Stat  \  v.  /I,  yson,   !  Win 

See  (  Accessory,  4-5-6.)     i  m— Construction  of  va- 

rious  cla  ition,    20.)     (Evidence — Laws  and 

her  states  -  8.)     (Evidence- 

Privileged  and  confidential  comnm  i  -  J.)     (Evidence — 

Proof  of  cha  <!  L'hein  xamina- 

tion,  3-6-9-20. )     (  Evidence— Copi 

ittedandbo 
Of  the  6-13-14-15- 

16-19-21-23-24.)     (Evidence— De]  17-38-39.)     (Evi- 

dence— Witn  their  con:  5  7-11- 

14-21-29-40-54-58-71-75. )      (  Evidence— Testimony  inadmissi- 

sy,    11  -12-1  !-.)      (  Evidence— Imp. 
credibility  of  L-35-36-37 

cible  '!'■■  (Highways,  5.) 

XXVII.  II':    I 

1.  Iii  an  action  for  wor  the  plaintiff  with 

the  murder  of  a  certain  person,  the  dying  declarations  of  such 
person  is   not  evidence,  on  i  on.     Barfield 

v.  Brit  11.     (This  case  overrules  that  of  McFarl 

Shaw,  2  Car.  I  i0,)  in  which  it  had  been  held 

that,  in  an  action  by  a  father  for  the  seduction  of  his  daughter, 
rhtgivein  evidence  her  dying  declarations,  in  which  she 
chargi  tendant  with  being  her  seducer.) 

See  (Evidence — In  criminal  proceeding  and  indictments,  6 
]■,    ft  -77-78-83-85-90-95.) 

XXVIII.       WHO   TO    DECIDE    ITiiX    ITS    GOMPEPENCY, 

1.  Where  the  propriety  of  admitting  testimony  in  the  court 
below  depends  upon  an  inference  of  tact,  such  inference  must  be 
drawn  by  that  court,  and  the  admission  of  testimony,  founded 
upon  such  inference,  cannot  be  assigned  as  error  in  the  supreme 
court.     State  v.  Svfink,  1  Dev.  and  Bat.,  9. 

■1.   It  is  always  a  question  oi  law  for  the  court,  whether  the 


522  EVIDENCE.— XXVIII.-XXIX. 

best  evidence  in  the  party's  power  ami  of  which  the  nature  of 
the  case  admits,  has  been  produced.     KvUijy.  Craig,  •">  [red.,  12it. 

3.  Where  the  plaintiff  offers  to  prove  a  contract  by  parol  evi- 
dence, andit  is  objected  that  the  contract  was  reduced  to  writing 
the  witness,  who  is  introduced  to  show  that  there  was  a  written 
contract,  must  state  the  contents  of  the  instrumi  ni  to  the  court, 
that  the  court  may  judge,  whether  it  relates  to  the  same  contract 
offered  to  be  proved  by  the  plaintiff;  and  it  is  error  to  have  this 
fact  to  be  ascertained  by  the  jury.     Uatliffv.l  i  I      I.,  54<x 

4-.   It  is  the  province  of  the  court  ion  of 

the  admissibility  of  evidence.     Monroe  v.  Stitlts,  9  [red,  49. 

5.  The  court  below  is  the  ! 

understands  the  ol  i  n  h  u  i  ut  icii  n1  in- 
telligence to  give  evidence.     State  v.  Pi  330. 

6.  Prelimin  iry  q  in  the  trial  o 
on  v  Inch  the  admissibility  ol 

by  the  judge;  and  if  he  quh  r  view 

oi  the     iw,  involved  in  the  trial  of  such  preliminary 
aot  ]>■■  re\  iewed  upon  ap] 

7.  1  itne  by  1  objected  to  as  in- 
inpeti               u                                wner  of  tl 

[to,  and 
must  be  decided  on  by,  the  co       ;  f  the  plai  itiff 

witnesses  to  el,  their 

testimony,  and  any     I  ere  I  it,  must  be 

addressed  to,     □  by  the  ji  .        tid  not  by  the  court. 

Scott  v.  Brown,  5  Jones,  40b". 

8.  The  court  inn  on  which  the  admissil 
evidence  depends,  and  it  is  error  to  leave  the  decision  ot  it  to  the 
jury.     Bu1  if  the  party  <  could  not  pi      ;  '•   '     injured 
by  it,  it  is  not  aground  for  a   ven\  <    d    ••  vo.     6        v.  L 
Winsl 

XXIX.        OF    THE    EFFECT    TO    RE    GIYEX     TO    TESTIMONY    BY    A    JURY. 

1.  Jurors  are  not  bound  to  take  either  the  whole,  or  any  part 
of  a  witness'  testimony  as  true,  if  in  in  their  consciences  they 
do  not  so  believe.  But  where  it  is  incumbent  on  a  party  to  es- 
tablish a  fact,  and  the  only  t  istimony  in  relation  thereto  contra- 
dicts it,  the  jury  cannot  capriciously  mangle  the  testimony,  so 
as  to  convert  it  into  evidence  of  what  if  does  not  prove,  [f  the 
witness  be  deserving  of  credit,  the  fact  necessary  to  be  shown  is 
disproved — and  if  he  be  not  worthy  of  credit,  there  is  a  defect  of 
proof.      White  v.  White,  4  Dev.  and  Bat.  401. 

2.  Where  a  jury  are  left  in  a  reasonable  and  real  doubt,  as  to  the 
credibility' of  a  witness,  they  should  disregard  his  testimony,  and 
give  such  a  verdict  as  they  would  have  done,  if  he  had  not  been 
a  witness.     Miller  v.  Richardson,  2  Ired.,  250. 


EVIDENCE.— XXIX.  523 

3.  Where  three  witnesses  were  introduced  by  the  plaintiff,  and. 
i'i'um  the  evidence  of  one  or  two  of  them,  it  was  doubtful  whether 
the  plaintiff  ought  to  recover,  it  was  properly  left  to  the  jury  to 
decide  the  disputed  question,  upon  a  consideration  of  all  the 
testimony.     Homey  v.  Craven,  4  [red.,  513. 

4.  The  impression  of  a  witness,  who  ;  ,;i  at 
all,  is  some  evidence,  the  weighl  of  which  is  a  matter  for  I 

all,  i         i  ad  very   mu 

[red.,  46. 
J.  A  court,  when  called  up 

into 
party  may  ha    i  ametime;  but  it  will  si     ttin 

statement,  and  if  il 
or  at  variance  with  i  I  will 

L  to  sustain 
tier,  Bus  b.,  113. 

(J.   Where  a  defendant,  on  his  am 

ch  was  "V         i  live  miles 

The  pr  .  t  ]  ..  was  no  evi 

L-y,  that  the 
county.     ;   att  v.  ,,•  ,■•     .  i  us  >. 

7.  The  court  lias  no  right  u] 

ined  in  an  i 
tinuance,  which  is  admi  theoppi  le;  but 

on  ofj  the  jurj  . 
i  94. 

8.  In  a  civil  ruse  a  party,  who  affirms  a  fact,  must  prove  it. 

1     satisfied  by  the  weight  of  the  1  ny  that 

ay  so  find,  without   beiug  required  to  be 
itional    doubt."      Need  v.    Fespee 
Jones, 

9.  In  an  action  of  trespass   vi  et  armis,  where  the  testimony 

'ant  is  circumstantial,  the  jury  are  nol  bound 

to  be  3  eyon  \  a   reae  ble  d  lubt,"  bhal  the  defendant 

was  guilty  of  the  trespass  alleged ;  for  that  rule  is,  in  f< 
vitt  .  confined  to  capital  cases.     Ri  '■  r,  1  Jones,  479. 

10.  Circumstances,  that  raise  only  a  conjecture,  oughl  not  to 
be  left  to  the  jury  as  evidence  of  a  fact,  which  a  party  is  required 
to  prove.     Suth  _     ones,  320. 

11.  Evidenc  _■■•  en  :"  foreajuryto  discredit  a  witness,  and  which 
is  only  competent  forthat  purpose,  ought  not  to  be  left  to  them  as 
substantial  evidence  to  establish  the  alligations  of  the  party  who 
offers  it.     Henson  v.  King,  -  Jones,  3iS5. 

12.  Testimony,  that  raises  a  mere  conjecture,  ought  not  to  be 
left  to  a  jury  as  evidence  of  a  tact,  which  the  party,  who  offers  it. 
is  required  to  prove.     Matthis  v.  Hatthis,  3  Jones,  132. 

13.  In  a  trial  by  jury,  if  tliere  be  an  entire  want  of  evidence 


524  EVIDENCE— XXIX. 

tending  to  prove  a  matter  in  issue,  it  is  the  duty  oi  the  court  so 
to  charge  the  jury;  but  if  there  be  evidence,  competent  and  rej- 
avant  to  establish  any  fact  in  issue,  although  it  be  very  slight,  it 
must  be  left  to  the  jury,  for  it  is  their  exclusive  province  to  pass 
upon  it.     State  v.  AUen,  3  Jones,  251. 

14.  Where  one  witness,  on  a  trial  for  murder,  deposed  to  farts 
tending  to  prove  a  legal  provocation,  though  other  witnesses  con- 
tradicted him,  the  prisoner  had  a  right  to  the  opinion  of  the 
jury,  upon  the  question  of  provocation,  and  the  judge  had  no 
right  to  tell  them  that  there  ^  irovocation.     Ibid. 

k*>.  Where  a  homicide  was  proved  and  admitted  on  a  trial  for 
murder,  the  facts,  that  the  parties  had  been  apparently  friendly 
a  short  time  before,  and  thai  a  witness,  who  was  two  or  three 
hundred  yards  from  thi  house  where  the  parties  were,  heard  a 
like  the  lumbering  of  chairs  in  the  house,  and  at  the  same 
time  heard  a  !  >1<  .v  clamatiou  from  the  dei 

of  "  0  Lord;"  and  a  reply  from  the  prisoner;  "if  you  don't  shut 
your  month  I  will  kill  3  held  (Pearson  J.  dissenting,) 

not  to  afford  any  evidence  of  a  legal   pro\    c  1        luce  the 

lurder   to  manslaughter.     St        it.         nson-,  3 
Jones, 

16.  Where  the  facts,  relied  on  for  the  conviction  of  a  prisoner  of 
a  capital  offence,  consi  ent  circumstances, 

held  that  it  was  proper  to  instruct  the  jury:  that,  though 
the  Si;:,  '  d  to  establish  one  or  more  of  the  facts  relied 

on,  yet,  if  enough  had  been  shown  to  satisfy  them,  beyond  a 
rational  doubt,  of  the  defendant's  guilt,  i  lut;    to  con 

Vict  him.     State  v.  Frank,  5  Jones,  384. 

17.  Where  a  witness,  called  to  testify  to  a  conversation  in  re- 
lation to  the  unsoundness  of  an  animal  bought  by  the  defendant; 
and  afterwards  sold  to  the  plaintiff,  could  not  say  whether  the 
conversant  n  oc<  nrred  at  the  time  of  the  sale  or  afterwards,  it 
ioas  held  that  his  testimony  amounted  to  nothing.  Hinsonv. 
King,  5  Jones.  393. 

18.  Where  the  declarationi  of  a  defendant  are,  in  part,  a  con- 
fession of  a  prima  facie  cause  of  action  in  the  plaintiff,  and  the 
remaining  part  the  allegation  of  matter  in  avoidance,  the  jury 
may,  if  they  believe  the  latter  part  of  the  declarations  to  be  un- 
true, reject  them,  and  find  a  verdict  for  the  plaintiff  on  the  for- 
mer part.  It  would  be  otherwise,  it'  the  admission  were  such 
that  one  part  could  not  be  separated  from  the  other.  Rankin  v. 
Thomas,  5  Jones,  435. 

19.  When  the  declarations  of  a  party  are  given  in  evidence 
against  him,  although  the  whole  must  go  to  the  jury  to  be  con- 
sidered by  them,  yet  they  are  not  bound  to  find  the  whole  to  be 
true  or  false,  but  may  act  upon  such  parts  as  they  believe,  and 
reject  such  as  they  disbelieve.     State  v.  Atkinson,  6  Jones,  65. 


EVIDENCE.— XXIX.  525 

20.  Where  it  was  not  proved  that  any  theft  had  been  com- 
mitted at  all.  it  was  held  that  it  was  no  evidence  that  the  plain- 
tiff had  stolen  money  from  the  defendant,  that  he  was  in  a  room 
alone  with  the  defendant,  who  was  asleep  on  a  bed  in  the  day 
time,  with  money  loose  in  his  vest  pocket.  Burton  v.  March, 
6  Jones,  409. 

21.  A  statemenl  madi   fcn  a  witness  out  of  court,  contradicting 
thai  made  on  the  trial,  and  brought  in  for  the  purpose  of  lin- 
ing the  integrity  of  such  witness,  cannot   nave  the  effect 

"1'  substantive  evidence  of  the  tarts  involved  in  the  issue.     tilatt 
v.  Neville,  6  Jones,  423. 

22.  That  a  :  to  the  plaintifl  was  seen  working 

idant's  saw-mill,  and  two  othei  bin  half 

a  mile  ft'  it.  hut  nut  working  for  the  defendant,  nor  being  in  his 
e  any  evidence  t>>  provi  thai  the  de- 
nt   had   hired   the   slave   tor  a   year.      Bond  v.  j.'  .  " 
• I  oiks.  1. 

28.   W'l i  slave,  having  a  jug.  wa  

time  inl  ituous  liquor  for  sale, 

and  after  i  I  -  ten   minutes,  returned  will, 

taining  a  quart,  1       iome  evidence  thai  the  liquor 

urchased  from  the  owner  oJ 
24. 

24.  <  Mi  th"  question  of  rational  doubt  in  a  capital  case,  it  is  not 
proper  to  say  to  the  jury  that,  "to  excln  al  doubt,  the 
evidence  should   be  such  as  thai   men  of  fair,  or  din 

would  act  upon  in  matters  oi   liigh  importanc        >   th        elves." 
Slate  v.  0s<  ar,  7  Jones,  305. 

25.  It  is  true  as  a  general  pri  :  udge  may  eo 
instruct  the  jury,  that  positive  testimony  is  entitled  to  more 
weight  than  negative.     H                    (          .7  Jones,  623. 

i'm.   A  receipt  signed  b  iff   for  a  sum  el'  money  ' 

ment  of  a  obtaim  linst  a  defen- 

dant, at  a  previous  term  ei'  a  court  el'  the  c  rant}    in  which  the 
defendant   lived,  and   of  which  th'-  giver  ol  .;it  was 

sheriff  at  the  time,  is  no  evid'      e  that  an in  his 

paid  to  him.     <  'ovm  ton  v.  j 
Jones,  31 . 

27.  Where  A   swears  that  B,   C   and   D   had   a   c 

I  i  r  on  a  matter  material  to  tin-  issue,  and  1  >  swears  that  no 

i  .  it  is  nut  a  ease  for  tin'  application 

of  the  rule,  which  gives  a  pri  affirmative  over  negative 

testimony,  'nit  is  a  ease  of  direct  contradiction  between  the  wit- 

.  in  which   the    jury  must   decide  upon   their  respective 

claims  to  credibility,     liners  v.  Poindexter,  8  Jones,  308. 

28.  .Matters  brought  out  in  cross-examination,  which  are  only 
admissible  to  weaken  the  force  of  testimony  in  chief,  ought  not 


526  EVIDENCE.— XXIX.-XXX. 

to  be  allowed  to  go  the  jury  for  a  different  purpose.     Luther  v. 
Sheen,  8  .(ones,  356. 

See  (Evidence — In  criminal  proceedings  and  indictment;-!,  129. ) 

XXX.       PRESUMPTIONS. 

1.  Long  acquiescence  is  proper  evidence  to  be  left  to  a  jury, 
from  which  they  may  presume  a  confirmation  of  a  sale  made  of 
the  property  of  the  person  acquiescing.  Holdy  v.  Egerton,  2 
Bay.,  79,  (248.) 

2.  Long  absence,  and  not  being  heard  f  ■  i  i  evidence  of  the 
party's  death.     Anonymous,  2  Hay..  L34,  (302. 

3.  The  absence  of  a  party  for  seven  or  eight  years,  and  his  not 
having  been  heard  from  in  that  time,  affords  a  snfficieni  pre- 
sumption of  his  death.     Bowden  v.  Evans,  2  Hay.  222,  (396. ) 

4.  In  questions  of  slavery  or  freedom,  a  presumption  of  slavery 
arises  from  a  black  complexion,  but  not  from  that  of  a  mulatto. 
Gobuv.  ©o5u,Tay.,164,(10O,)S.P.  Scottv.  Williams,  1  Dev.,  376. 

5.  A  presumption  arises  from  the  payment  of  the  last  instal- 
ment on  a  bund,  that  the  preceding  ones  have  been  paid,  pro- 
vided it  lias  been  made  at  the  time  and  in  the  manner 
contemplated  by  the  parties;  if  otherwise,  it  is  a  presumption 
that  the  parties  are  acting  under  a  new  agreement.  Wardv. 
Qreen,  2  Car.  I,  R.  L08,  (206.) 

i>.  The  lapse  of  fifteen  years,  unacccompi  :  yotl  r  weighty 
circumstances,  is  not  sufficient  to  raise  the  presumption  of  the 
payment  of  a  judgment  Lenox  v.  Green,  2  Car.  L  IL  281,  (261.) 
(Ten  years  now  sufficient,  see   Revised  Code,  ch.  65,  sec.  18.) 

7.  The  rule  that  a  grant  cannot  be  presumed  from  one,  who  is 
forbidden  by  law  to  make  it,  applies  only  where  the  person  is 
forbidden,  under  all  circumstances,  from  making  it;  therefore, 
where  the  commissioners  of  a  town  were  required  to  set  apart  a 
[ot  for  a  school,  and  it  appeared  that  they  had  done  so,  yet  a 
grant  of  that  lot  to  an  individual  might  be  presumed,  as  the 
grant  might  have  been  made  before  the  selection  tunic  place,  or 
the  first  might  have  been  given  up,  and  another  selection  after- 
wards mad''.  Jackson  v.  Com  Hill  '  i  mgh,  1  Dev. 
and  Bat.,  177. 

8.  To  establish  a  presumption  of  1  ion,  itisnot 
necessary  to  prove  that  the  possession  was  under  a  claim  of 
right,  as  ever-,  possession  is,  unexplained,  taken  to  be  on  the 
possessor's  own  right.     Ibid. 

!).  Lapse  of  time  is  not  of  itself  a  legal  oar.  but  only  evidence 
of  a  bar  properly  pleaded.  Therefore,  where  there  is  no  plea  on 
the  record,  to  which  lapse  of  time  can  apply  as  evidence,  it  can- 
hot  avail  as  a  defence.     Spencer  v.  Weston,  1  Dev.  and  Bat.,  213. 

10.  Where  it  appears  that  a  note  was  in  possession  of  the 
plaintill',  and  was  not  produced  on  the  trial,  every  fair  presump- 


EVIDENCE— XXX.  527 

rion.  that  can  arise  from  withholding  it,  is  to  be  made  against 
him,  as  t<>  those  parts  of  the  contents  that  do  not  appear  from  the 
evidence  given.     Symington  v.  McLiri,  1  Dev.  ami  Bat.,  291. 

11.  A  party  who,  on  a  trial,  insists  that  a  particular  deed  vests 
the  title  in  him,  is  not  thereby  d,  either  by  way  of  estop- 
pel or  of  presumption,  from  contending  that  another  deed  is  to 

timed  in  his  favor.     Hurley  y.  Morgan,    1  Dev.  and  Bat., 

12.  A  deed  may  properly,  and,  in  many  cases,  ought  to  be 
found,  upon  jury  and  the  court  may 
be  satisfied,  i  neverwasin  fact  made;  and  the  court  may  in- 
struct the  jury  that  it  i.--  their  duty  to  presume  such  deed,  unless 
the  i                     proved.     Ibid. 

13.  The  a  1791  ag  certain  possessions  of  land  valid 
against  the  -  I  the  common  law  principle  of 
presuming  a  grant  from  great  length  of  possession.  And  if  a 
person,  and  those  under  whom  he  claims,  have  been  i  ioi 
for  thirty-five  years  of  a  tract  of  land,  of  which  the  Hi 
boundaries  have  been  known  an  I  visible,  and  he  and  they,  under 
whom  he  holds,  claimed  up  to  th  ise  lines  and  boundaries,  a  grant 
for  the  land  up  to  those  boundaries,  may  be  presumed  to  have 
issued — although  the  actual  possession  or  enclosure  of  the  occu- 
pants might   not  have  extended  to  the  lines — the  possi     iod,  in 

that  case,  of  a  part  being  the   |  i  rf  the  whole.     Harris 

v.  Maxivell,  4  Dev.  and  Bat.,  241. 

14.  A  long  uninterrup  sionof  land,  as  for  thirty  years 
or  more,  by  persons  claiming  the  land  as  their  own,  will  justify 
the  presumption  of  a  grant,  although  no  connection  by  a  loi 
other  conveyanci  is  proved  to  ha  v.'  existed  between  the  |  ersons 
so  holding  possession.   CancUerv.  i  11  it., 407. 

14.   In  all  cases  the  effeol  ";   lonj    and  u  tori  us  pi 
affording  presumptive  evidence  of  right,  is  very  powerful.     In 

P  boundary,  it  is,  at  least,  tantamount  to  ■ 
utatii  i  -  I.,  49. 

16.  Th  rup  i  of  a  slave  for  a   loi  j  1 
even  before  the  act  of  1#20,  afforded  a  strong  presumpl     n  of  i 

-      title  in  the  possessor,  unless  reason  bl  utted  1     a  fidu- 

ciary i'  i."  ion,  dedgi   I   bailmi  nt,  disability  o 

alleged  to  b  he  like.      G  lliams, 

5  [red.,  4;>7. 

17.  No  land  rill,  in  law,  ai  to  a 
presumption  of  title,  wh  an  of  the  possession  is  shown ; 
but  such  .               q,   '.  ith  its  attendant   circumstances,  i 

hit  to  the  jury  as  a  matter  of  fart,  from  which  they  may,  or  may 
not,  infer  that  a  legal  conveyance  of  title  had  been  madi  to  the 
person  claiming  under  the  possession.  CaUender  v.  Sherman,  ."> 
Ired.,  711. 

18.  At   any   rate    the  original  inconsistency   of  relation,  be- 


528  EVIDENCE.— XXX. 

tweenthe  possession  and  the  opposite  title,  must  have  been  clear- 
ly dissolved  and  turned  into  an  adverse  possession  for  many 
years  before  suit,  in  OTaer  to  make  it  available  as  a  ground  for 
the  presumption  of  title.      Ibid. 

19.  Where  a  person  has  been  not  only  in  the  actual  occupation 
of  a  part  of  a  tract  of  land  for  twenty-five  or  thirty  years,  but  has 
also  claimed  it,  and  exercised  acts  of  dominion  d  ownership 
over  it,  up  to  a  well-defined  boundary,  for  thai  and  a  longer  time, 
tins  is,  altogether,  evidence  to  be  lefl  t<>  the  jury,  to  presume  a 
grant  of  the  land  to  the  person,  and  of  conveyances  to  those 
claiming  under   him,  who  so  held  the  p 

MdxioeU,  7  Ired.,  135. 

20.  In  this  State  a  black  person  is  presumed  to  be  a  slave. 
State  v.  Miller,  7  [red.,  275. 

21.  It  is  amongst  the.  strongest  circumstantial  proofs  against 
i  pi  rs  m,  that    he  omits  to  give  evidence  to  repel  circumsi  i     ■ 

of  suspicion  against  him,  which  he  would  have  it  in  his  power 
to  give,   if  fcb  iso  circumstances  of  suspicion   were  unfounded. 
■    Wright,  9  Ired 

22.  From  an  actual  continuous  possession  of  land  up  to  known 
boundaries  for  thirty  yes  rs,  the  law  presumes  a  grant  to  the  par- 
ty in  possession  a  mi  a  title  in  those  claiming  under  him,  and  the' 
jury  should  so  find.  Such  occupation  m  I  as  is  consis- 
tent with  the  usages  of  agriculture,  such  as  cultivating  the  land. 
dealing  new,  and  turning  out  old  fields,  and  cutting  timber  pro- 
miscuously.     Wallace  v.  Maxwell,  10  Ired..  110. 

23.  /'  seems  that  the  presumption  of  the  death  of  an  individ- 
ual, arising  from  his  absence  from  his  domioil  seven  years,  does 
not  imply  that  he  died  a  id  of  seven  years,  but  that  ho 
died  either  then,  or  at  some  other  period  during  the  seven  years. 
State  v.  M   ire,  11  [red.,  160. 

24.  ii  is  i  tablished  as  a  general  proposition,  thai  from  a  long 
and  peaceable  possession  oi'  land,,  upon  a  claim  of  right,  a  pre- 
sumption arises  that  the  po  on    '..       rightful,  and,  ther 

was  in  n1         d    and  assurances,  as  are  necessary  to 

impart  to  it  that  character.  The  presumption  is  not  deduced  as 
an  inference  of  fact  from  the  possession,  ai  -•  i  li  m  e  merely  and 

i ording  to  its  influence  on  the  minds  of  the  jury,  in  producing, 

or  failing  to  produce  a  conviction,  that  the  presumption  is  accord- 
ing to  the  truth,  but  the  deduction  is  ma  do,  without  regard  to  the 
very  fact,  by  a  rule  in  the  law  of  evidence.  Bidlardv.  Barlts- 
dale,  11  [red.,  461." 

25.  The  force  of  this  presumption  is  no1  destroyed,  nor  in  any 
degree  repelled  by  evidence,  which  renders  it  probable  that  in 
truth  a  grant  was  not  issued.  The  giant  is  presumed,  not 
because  the  jury  believed  that  one  issued,  but  because  there  is 
no  proof  that  it  did  not  issue;  indeed,  in  the  nature  of  things  it. 


EVIDENCE.— XXX.  529 

■would  seem  that  there  can  be  no  sufficient  negative  proof  of  the 
kind  supposed.     Ibid. 

26.  Where  a  long  possession,  under  a  claim  of  title  by  a  grantee, 
as  for  forty  seven  years,  has  been  proved  and,  to  rebut  the  pre- 
sumption, it  was  shown  that  the  party  so  claiming  was  unable 
to  produce  a  grant,  declared  his  belief  that  it  never  existed,  and 
made  efforts  to  obtain  another  grant;  it  was  hi  Id,  that  from  the 
alleged  possession,  the  jury  should  presume  a  grant,  and  that,  as 
matter  of  law,  there  was  no  evidence  to  oppose  and  repel  the 
presumption.     Ibid. 

27.  A,  in  1793,  took  possession  under  color  of  title,  of  land 
which  had  been  previously  granted  to  another,  and  died  in  1794, 
leaving  a  will.     In  1795,  l'>,  a  son,  but  not  a  devisee  of  A,  took 

ion  without  color  of  title,  and  continued  in  the  unterrup- 
ted    po     -  sing  acts  of  ownership,  for   more  than 

twenty  years:  and  '  that B's  title  was  perfected,  by  the 

ption  of  a  conveyance  from  such  possession.*  Smiihv 
,12  Ired.  11. 

28.  The  presumption  of  death,  arising  from  the  absence  of  a 
party  tor  more  than  sever:  years,  is  not  removed  by  a  rumor 
during  that  time,  of  his  being  alive,  which  rumor,  upon  Investi- 
gation, tm  i!  out  to  be  without  foundation.     31  tore  v.  Parker,  12 

l  2:). 

29.  W  rty  has  been  absent  seven  years,  without  hav- 
ing been  h  "I  of,  the  only  presumption  arising  is,  that  he  is 
■  lead:  and  there  is  none  as  to  the  time  of  bis  death.  Where  a 
precise  time  is  relied  on,  it  must  be  supported  by  sufficient  evi- 

before  the  jury,  besides  the  lapse  of  seven  years  since  the 
person  i  a  Til  of     Spencer  v.  Roper,  L3  [red.,  333. 

oO.  i  issession  of  land  and  acts  of  ownership,  as  by 

clearing,  ir..  for  twenty-three  years,  will  raise  the  presumption 
of  a  conveyance  thereof,  so  as  to  enable  one,  thus  having  acquired 
i  it  1  ,.  to  maintain  ejectment  against  a  stranger  who  enters,  though 
ihe  former  has  not  had  the  positio  pedis  of  the  particular  part  of 
the  trad  occupied  by  the  latter.     Smith  v.  Bryan,  Busb.,  1801 

31.  The  la  \  raises  no  presumption,  nor  can  the  court  judicially 
know,  that  the  court  house  of  a  county  is  five  miles  or  more 
from  the  boundaries  of  such  county.     States.  Revels,  Busb.,  200. 

Hi'.  Where  a  payment  was  alleged,  and  the  defendant  having 
offered  in  evidence  circumstances  tending  to  raise  a  presump- 
tion of  it,  it  was  Iveld  that  he  might  show,  in  further  support  of 
the  presumption,  that  the  parties  lived  near  each  other,  met 
almost  daily,  and  that  from  the  time  the  defendant  had  received 
the  money,  which  In-  was  to  pay  to  the  plaintiff,  the  latter  was 
much  pressed  for  money  by  execution  and  otherwise.  Daniel  v. 
Whitfield,  Busb.,  2<J4. 

33.  To  raise  the  presumption  of  the  jrrantof  an  easement  from 
an  user  of  twe  nt v  years,  there  must  be  evidence  that  such  user 
34 


530  EVIDENCE.— XXX. 

was  adverse,  and  upon  a  claim  of  right.     Mebane  v.  Patrick,  1 
Jones,  23. 

34.  The  presumption  of  slavery  does  not  arise  from  a  complex- 
ion, a  shade  darker  than  that  of  a  mulatto.  Nichols  v.  Bell,  1 
Jones,  32. 

35.  Where  one  uses  a  road  over  the  land  of  another  for  twenty 
years,  as  a  matter  of  right,  and  without  interruption,  the  juiy 
should  be  instructed  that  it  was  their  duty  to  presume  the  grant 
of  the  easement.  But  if  the  road  he  used  under  a  license,  or  by 
mere  permission  of  the  owner  of  the  land  over  which  it  runs,  no 
such  presumption  arises.     Ingram  v.  Hough,  1  Jones,  :>'.). 

36.  If  the  owner  of  the  servient  tenement  erect  gates  and  turn 
the  road  during  the  time,  without  objection  on  the  part  of  the 
owner  of  the  dominant  tenement,  it  is  evidence  tending  to  show 
that  the  user  was  by  permission,  ami  not  as  a  matter  of  right. 
And  the  fact,  that  the  owners  of  the  two  tenements  are  brothers, 
is  some  evidence,  (though  slight,)  which  may  he  considered  in 
connection  with  the  other  facts.     Ibid. 

37.  A  settlement  of  accounts  between  parties  a Hbrds  presump- 
tive evidence,  that  all  matters  of  charge 'and  discharge  on  both 
sides  were  settled.     Kennedy  v.  Williamson,  5  Jones.  284. 

38.  A  presumption  arises  from  a  person  being  black,  that  he 
is  a  slave.     Brookfield  v.  tStanton,  6  Jones,  156. 

39.  The  use  of  a  landing  on  a  ii;p  ream  by  the  public, 
for  twenty  years  as  a  matter  of  right,  will  afford  ground  for  a 
presumption  that  it  had  been  dedicated  by  the  owner  to  the  use 
of  the  public.     Askewv.  Wynne,  7  Jones,  22. 

40.  Whether  the  doctrine  of  the  presumption  of  the  death  of 
a  person,  arising  from  his  having  gone  to  parts  unknown,  and 
not  having  been  heard  from  in  seven  years,  applies  to  slaves. 
<//ur)-e.     Jones  v.  Buird,  7  Jones,  152. 

41.  A  jury  is  at  liberty  to  infer  the  motives  of  parties  from 
their  conduct;  then  fore,  where  in  an  action  for  an  assault  and 
battery,  it  was  proved  that  the  defendant  came  to  the  store  of 
the  plaintiff,  with  whom  ho  had  previously  been  on  friendly 
terms,  and  said  to  him,  -'how  dare  you  send  a  let  1  it  to  my  house," 
and  immediately  assaulted  and  beat  him,  it  loas  held  to  lie  error 
in  the  judge  to  charge  the  jury  that  there  was  no  evidence  that 
the  letter  was  offensive  or  insulting,  and  that  they  could  not 
presume  that  it.  was  so.     Bond  x.  Warren,  *  Jones,  till. 

42.  Where,  in  a  suit  for  the  loss  by  lire  of  a  quantity  of  rice 
deposited  at  a  mill  to  be  beaten,  it  was  proved  that  the  general 
custom  of  the  mill  was  to  give  a  receipt  to  the  owner  of  the  rice 
delivered,  expressing  the  quantity  and  terms  of  deposit,  it  was 
held,  in  the  absence  of  proof  that  the  custom  had  been  departed 
from  in  this  particular  instance,  that  there  was  a  presumption 
that  such  receipt  had  been  delivered  to  the  plaintiff  Ashe  v. 
DeRosset,  8  Jones.  2*0. 


EVIDENCE.— XXX.-XXXI.  531 

43.  The  continued  overflow  of  land  for  twelve  years  only,  by 
"ponding  water  upon  it,  is  not  sufficient  to  raise  the  presumption 
of  the  grant  of  an  easement.     Griffin  v.  Foster,  8  Jones,  337. 

44.  Where  a  tract  of  land  of  three  hundred  acres  had  mai-ked 
trees  all  around  it,  and  a  person  held  a  small  isolated  parcel 
within  these  bounds,  for  five  years,  and  there  was  no  evidence  to 
•connect  his  possession  with  the  marked  trees,  or  with  the  grant 
under  which  the  marks  were  made,  it  was  livid  that  he  had  not 
prima  fade  evidence  of  title  to  the  three  hundred  acre  tract,  ac- 
cording to  the  marked  boundaries,  under  the  act  of  1830,  ch  68. 
Kron  v.  Cagle,  1  Winst.,  118. 

See  (Bonds — Payment  or  satisfaction  of  bonds,  1-2-3-4-5 
-6-7-1 0-13-14-15-17-18-1D-20-21-22-24.)  (Deed— Of  the  pre- 
sumption of  a  deed  1-2-3-4.)  (Executors  and  administrators — 
Of  suits  by  executors  and  administrators,  24.)  (Gift — Of  slaves 
since  the  'act  of  1806,  8-14-15.) 

XXXI.       WITNESSES THEIR    LIABILITIES. 

1.  Where  a  witness,  who  had  been  subpoenaed,  failed  toattend, 
and  also  refused  to  give  his  testimi  my,  under  a  commission  issued 
for  the  purpose,  the  court  ordered  an  attachment  against  him. 
but  directed  that,  when  taken,  he  might  be  bailed.  Baker  v. 
Blount,  ■>  Hay..  359,  (550.) 

2.  To  enforce  the  attendance  of  a  witness,  at  each  and  every 
term  during  the  continuance  of  a  suit,  it  is  only  necessary  that 
lie  should  lie  subpoenaed  once;  and  if  he  fail,  and  is  called  out, 
the  penalty  imposed  does  not  release  him  i'rom  an  obligation  to 
appear  at  a  subsequent  term.     Suieany  v.  Hunter,  1  Murph.,  181. 

3.  A  witness  for  the  State,  who  is  called  out  upon  his  recog- 
nizance, and  has  judgment  nisi  for  the  forfeiture  entered  against 
him,  may  apply  to  the  court  for  a  remission  of  the  forfeiture, 
before  a  sci.  fa.  issues  against  him.  State  v.  Herndon,  1  .Murph. 
269. 

4.  Where  a  witness  alleges  that  he  was  unable  to  attendeourl 
this  inability  must  be  decided  by  reference  to  the  modes  of  trav- 
elling, which  are  in  use  in  the  community.  And  if  practicable 
modes  of  conveyance  to  the  court  exist,  and  nothing  is  shown, 
on  the  part  of  the  person  summoned,  that  these  were  not  within 
hip  power,  his  non-attendance  cannot  be  attributed  to  inability 
Eller  v.  Roberts,  3  (red.,  11.. 

5.  A  witness,  who  is  summoned  in  this  State  while  casually 
here,  but  who  resides  in  another  state,  cannot  he  fined  for  non- 
attendance,  if  he  havi  returned  to  his  own  state,  and  be  at  home, 
at  the  time  when  his  attendance  is  required  in  one  of  our  courts. 
Kinzey  v.  King,  6  [red.,  76. 

li.  Where  a  witness  has  been  summoned  to  attend  at  court, 
though  a  verdict  may  be  rendered   in  f:  use,  yet,  if  anevr 


532  EVIDENCE.— XXXI.-XXXII. 

trial  be  granted,  lie  is  bound  to  attend  the  subsequent  terms, 
until  a  final  decision,  without  a  new  subpoena.  Fulbright  v.  M<- 
Elroy,  10  Ired.,  41. 

7.  Where  two  subpoenas  were  served  upon  a  witness,  requiring 
his  attendance  on  the  same  day,  at  different  places,  distant  from 
each  other,  it  was  held  that  he  was  not  bound  to  obey  the  writ, 
which  had  been  first  served  upon  him,  but  might  make  his  elec- 
tion between  them.     Icehour  v.  Martin,  Busb.,  478. 

8.  A  witness,  who  fails  to  attend  when  summoned,  on  an  issue 
in  bastard}-,  is  subject  to  a  line  of  $40,  instead  of  $80,  under  the 
Rev.  (.'ode,  ch.  31,  sec.  60,  tin- suit  or  proceeding  being  a  civil, 
and  not  a  criminal  one.      Ward  v.  Bell,  7  Jones,  79. 

XXXII.        WITNESSES,  TUEIR    COMPENSATION    AND  REMEDY    THEREFOR. 

1.  To  entitle  a  witness  to  have  his  tickets  for  his  attendance 
taxed  in  the  bill  of  costs,  lie  must  procure  ami  tile  them  with  the 
clerk.     Moore  v.  Iskr,  Mar.,  78,  (81.) 

2.  A  witness  may  have  his  dues  taxed,  and  an  execution  there- 
for, though  omitted  in  a  previous  execution;  but  this  is  at  his 
own  expense.  11'  a,  year  and  a  day  have  elapsed,  he  must  issue 
a  sci.  fa.  in  the  name  of  the  party  to  the  judgment,  before  he  can 
have  Ids  execution.     Anonymous,  -  Hay.,  138,  (o2o.) 

3.  The  witnesses  of  the  prevailing  party,  prior  to  the  act  of 
1796,  could  not  warrant  for  their  attendance  after  judgment  in 
the  suit,  Standley  v.  Hodges,  Tay.,  274.  (115,)  S.  C.,Conf.  lie])., 
330,  (413.)     (See  Rev.  Code,  ch.  Ml,  sec.  74.) 

4.  A  witness,  who,  after  being  summoned  on  the  part  of  the 
State,  removes  to  another  state,  is  entitled  to  mileage  from  the 
place  of  his  actual  residence.  State  v.  Stewart,  1  Car.,  L.  11.,  524, 
(138.) 

5.  A  witness,  summoned  by  each  party  to  a  suit,  is  entitled  to 
compensation  from  each.      Peace  v.  Person,  1   Murph..  188. 

6.  Witnesses  should,  in  swearing  to  their  attendance,  specify 
each  term,  and  the  ticket  should  state  the  number  of  days' at- 
tendance at  each  term.     Thompson  v.  Hodges,  3  Hawks,  318. 

7.  A  witness,  who  attends  court  without  being  subpoenaed,  is 
not  entitled  to  prove  his  attendance,  so  as  to  charge  the  losing 
party  with  the  amount  of  his  witness  ticket,     Ibid. 

8.  While  a  suit  is  in  progress,  the  witnesses  have  a  right  to 
demand  from  the  party,  at  whose  instance  they  are  summoned, 
the  payment  for  their  attendance  at  the  end  of  each  term,  or  as 
soon  as  the  suit  is  disposed  of.  Their  claim,  after  jndgment,  is 
not  against  the  person  summoning  them,  but  against  the  person 
bound  to  pay  the  eosts  under  the  judgment,  unless  the  party  so 
bound  is  insolvent,     Carter  v.   Wood,  11  Ired.  22. 

9.  Witnesses,  summoned  by  a  person  suing  in  forma  pauperis, 
are  entitled  to  their  costs  for  attendance,  which  they  may  recover 


EVIDENCE.— XXXII.—  EXCHANGE,  &c. 


533 


of  him,  or  may  file  their  tickets,  to  be  taxed  against  the  defend- 
ant in  the  event  oi  the  plantiff's  success.  Officers  of  the  court 
only  are  included  in  the  order  allowing-  the  suit  to  be  presented 
by  the  plaintiff  as  a  pauper.  Morris  v.  Rippy,  4  Jones,  533. 
(See  Rev.  Code,  ch.  31,  sec.  43.) 


EXCHANGE. 

1  Where  there  has  been  a  temporary  exchange  of  personal 
chattels,  there  is  no  principle  that  the  one  shall  lie  returned  or 
tendered  to  the  former  owner,  before  the  other,  or  its  value,  can 
be  recovered.     Xotl  v.  Paul,  4  Jones,  75. 


EXECUTION. 


I.   What  ruay  be  levied  on  and  sold 

undei'  execution. 
II.  Where  and  be  what  county  an  exe- 
cution may  issue,  and  of  its  re- 
turn. 

III.  Levy,  sale,  and  application  of  the 

money  raised 

IV.  Forthcoming   bonds  taken  on   a 

levy. 


V.  Right  to  the  surplus,  after  the  sat- 
isfaction of  an  execution. 
VI.  Lien  and  priority  of  executions. 
VII.  Of  void  and  irregular  executions, 
and  proceedings  to  set  aside  exe- 
cutions. 
VIII.  Purchaser  at  an  execution  sale. 
IX.    Of  tin'  i,iplas  ad  siitisfaeiewliiiii. 
X.  Of  the  discharge  of  the  defendant 
in  the  execution. 


WHAT  MAY  BE  LEVIED  ON    AND    SOLD  UNDER  EXECUTION. 

1.  An  execution  cannot  be  levied  on  a  chattel  of  the  testator, 
alter  it  is  delivered  ov<  r  to  the'  legatee,  but  he  must  account  foi 
its  value.     Hostler  v.  Smith,  2  Hay.,  305  (494.) 

2.  A  slave,  in  the-  hands  of  an  administrator  de  limit  nun,  can- 
not be  levied  on  and  sold  for  the  debts  of  the  next  of  kin  ;  it 
not  being  such  an  equitable  interest  of  the  next  of  kin  as  may 
be  sold  under  the  act  of  1812.  It  follows  that  the  administra- 
tor might  sustain  an  action  against  the  officer  fur  the  seizure 
and  sale.  MrKhr'nunj  v.  Carrotra//.  X.  C.  Term,  l'.'l  (G2I>).  (See 
Rev.  Code,  ch.  45,  sec.  4.) 

3.  Where  a  deed  is  made  in  trust  for  creditors,  and  they  never 


534  EXECUTION.—!. 

sign  it,  nor  assent  to  it  either  expressly  or  impliedly,  a  trusjs 
may  arise  to  the  bargainor,  which  will  be  subject  to  execution 
under  the  act  of  1812.  Moore  v.  3IeDufy,  3  Hawks  578.  (See 
Rev.  Code,  ch.  45,  sec.  4.) 

4.  After  a  deed  in  trust  or  the  satisfaction  of  ereditors  was 
executed,  wherein  was  contained  both  real  and  personal  proper- 
ty, a  part  of  the  personal  property  was  levied  on  and  sold  under 
execution;  and  it  was  held  that  the  sale  passed  no  title;  because 
the  debtor  has  no  such  equitable  interest  as  could  be  sold  under 
execution  by  virtue  of  the  act  of  1812;  the  trust  being  a  mixed 
one,  partly  for  one  person  and  purpose;  and  partly  for  another. 
Brown  v.  Graves,  4  Hawks  342.  (See  Eev.  Code,  ch.  45,  sec.  4. 

5.  A  sheriff  can  sell  only  such  estate  as  the  defendant  in  the 
execution  can  convey,  by  deed  passing  an  estate.  Where  the 
deed  of  the  defendant  would  operate  only  by  way  of  estoppel,  a 
sheriffs  deed  conveys  nothing.  Gentry  v.  Wagstaff,  3  Dev., 
270. 

6.  The  esate  of  a  person,  who  holds  intrust  for  creditors,  with 
a  resulting  trust  for  the  grantor,  is  not  within  the  act  of  1812, 
subjecting  equitable  interests  to  sale  under  execution.  Morde- 
eai  v.  Parke?;  3  Dev.,  425. 

7.  Goods  which  were  the  property  of  a  decedent,  cannot  be 
seized  in  the  hands  of  his  donee,  by  virtue  of  an  execution  un- 
der a  judgment  against  his  executor.  If  the  creditor  seeks  to 
subject  them,  he  must  charge  the  donee  as  executor  de  son  tort. 
Boijitirx.  Roberston,  '■'>  Dev.,  537. 

8.  Slaves  held  by  a  trustee,  in  trust  to  be  divided  among  the 
children  of  A.  who  may  be  now  living,  and  those  who  represenl 
any  deceased  child,  &c,  are  not  liable  to  an  execution,  at  the  in- 
stance of  the  creditor  of  one  of  the  cestuis  que  trusts.  GUI is  v. 
McKay,  4  Dev.,  172. 

9.  A  sale  of  an  equity  of  redemption,  under  an  execution  at 
law,  at  the  instance  of  the  mortgagee  for  his  mortgage  debt,  is 
not  sanctioned  by  the  act  of  1812.  The  words  of  the  act  are 
general,  but  this  exception  arises  necessarily  out  of  the  subject 
and  spirit  of  the  act.  Camp  v.  C'oxe,  1  Dev.  and  Bat.,  52.  (See 
Rev.  Code,  ch.  45,  sec.  5.) 

10.  The  nature  of  the  interest  sold  is  not  changed  by  the  se- 
cond or  third  sections  of  the  act  of  1812.  The  rights  of  the  par- 
ties remain  as  before,  equitable;  therefore  the  act  is  to  receive 
its  proper  construction  from  a  court  of  equity.     Ibid. 

11.  Whenever  a  sale  under  ay?',  fa.  cannot  have  the  effect  to 
satisfy  the  plaintiff,  the  writ  eau  confer  no  power  to  sell.     Ibid. 

12.  The  object  of  the  act  of  1812  was  to  make  the  mortgaged 
estate  available  to  the  other  creditors  of  the  mortgagor;  not  to 
affect  the  relation  between  Mm  and  the  mortgagee.     Ibid. 

13.  As  courts  of  equity  relieve  against  contracts  between  per- 
sons in  a  fiduciary  relation,  so  they  ought  to  prevent  the  mort- 


EXECUTION.— I  535 

gagee  from  purchasing  the  equity  of  redemption  at  execution 
Bale,  and  thereby  destroying  the  relation  between  him  and  the 
mortgagor,  created  by  the  contract  of  loan.     Ibid. 

14.  Growing  crops  are  the  proper  subjects  of  a  levy  and  im- 
mediate sale  under  a  p.  fa.,  and  the  purchaser  acquires  a  right 
of  ingress  and  egress  to  cut  and  carry  them  away  when  ripe. 
Smithy.  Tritt,  1  Dev.  and  Bat.,  241. — (Growing  crops  cannot 
now  be  levied  on,  until  they  are  matured.  Eev.  Code,  ch.  45, 
sec.  11.) 

15.  All  vested  legal  interests  of  a  debtor,  which  he  himself  can 
legally  sell,  in  things  which  are  themselves  liable  to  be  sold  un- 
der a  p.  fa.,  may  be  sold.      Ibid. 

I(i.  A  vested  remainder  in  slaves  may  be  sold  during  the  life 
of  the  tenant  for  life,  under  a  //.  fa.  against  the  persou  entitled 
to  such  remainder.     Ibid. 

17.  The  legal  interest  of  a  defendant  in  undivided  chattels  may 
;ed  and  sold  under  execution.     Islay  v.  Stewart,  4  Dev.  and 

Bat..  160. 

18.  Where  a   debtor  conveyed  a   slave,  together  with  other 

Eroperty  real  and  personal,  to  his  creditor,  to  hold  to  him  and 
is  assigns  forever,  but  the  deed  was  expressed  to  be  made  upon 
condition  that,  if  the  debtor  should  pay  the  amount  due  by  a  cer- 
tain time,  it  was  to  be  void;  and  the  creditor  covenanted  that, 
until  that  time,  the  debtor  should  retain  the  possession  and  en- 
joyment of  the  property:  and.  before  the  expiration  of  the  time, 
the  creditor,  with  the  assent  of  the  debtor,  took  possession  of  the 
slave,  who  was  taken  from  him,  under  an  execution  in  favor  of 
another  person  against  the  debtor,  it  was  held  that,  under  the 
deed,  the  creditor  had  the  legal  title  of  the  slave,  and  that  only 
such  an  equitable  interest  remained  in  the  debtor  as  could  not 
be  taken  and  sold  under  an  execution;  and  that  for  the  taking 
the  slave  under  an  execution  against  the  debtor,  the  creditor 
might  maintain  an  action  of  trover.  Burgw  v.  Burgvn,  1  Ired., 
loo. 

l!l.  A  sheriff  cannot  sell  under  a  fi.  fa.  what  he  has  no  power 
by  the  writ  to  sell,  what  is  not  goods  or  chattels,  lands  or  tene- 
ments, within  tiie  sense  of  the  writ,  as,  for  example,  bonds  or 
bank  stock;  and  the  sale,  being  a  nullity,  a  ladder  at  such  sale 
is  not  compellable  to  pay  tin.  amount  of  his  bid.  Foot  v.  Glover, 
2  Ired..  129. 

20.  Where  a  debtor  lias  made  a  conveyance  ol  his  land  to  a 
trustee,  to  lie  sold  for  the  benefit  of  his  creditors  at  a  certain  time, 
should  not  the  debts  lie  previously  paid,  and  there  is  a  resulting 
trust  to  himself,  his  equitable  interest  in  the  land  may  be  sold 
under  execution,  even  before  the  day,  when,  by  the  terms  ot  the 
deed,  the  trustee  was  authorized  to  sell  his  legal  interest.  Ibid. 
(See  Rev.  Code,  eh.  45,  sec.  4.) 

21.  An  officer  has  a  right  to  levy  an  execution  upon  a  horse, 


536  EXECUTION.— I. 

though  the  owner  is  riding  him  at  the  time.     State  v.  DiU/iard, 
3  Ired.,  102. 

22.  The  goods  of  a  deceased  person,  in  the  hands  of  an  admin- 
istrator pendente  lite,  cannot  be  taken  under  an  execution  against 
the  administrator.  And  if  they  be  so  taken  and  sold  by  the  sher- 
iff in  such  case,  an  administrator  with  the  will  annexed,  subse- 
quently appointed,  may  support  an  action  of  trespass,  or  trover, 
against  the  sheriff  for  such  seizure  and  sale;  and  he  cannot,  in 
such  action,  reduce  the  damages,  by  showing  thaf  he  had  paid 
the  administrator  pendente  lite  the  surplus  of  money  arising 
from  the  sale,  after  satisfying  the  execution.  Satterwhite  v.  Oat  - 
■son,  3  Ired.,  549. 

23.  Where  a  person  crops,  or  works  with  the  owner  of  land  for 
a  share  of  the  crop,  and,  after  it  is  made,  the  crop  is  divided,  tin- 
share  of  the  Gropper  is  liable  to  be  sold  under  execution,  though 
it  was  levied  on  before  the  division  was  made,  and  though  it 
still  remains  in  the  crib  of  the  owner  of  the  land.  Hare  v.  Pear- 
son, 4  Ired.,  76. 

24.  Where  a  slave  belonged  to  one  for  life,  with  remainder  to 
another,  and  there  was  an  execution  against  both,  but  the-  re- 
mainderman, prior  to  the  lien  of  the  execution,  had  conveyed 
his  interest  in  the  slave  to  a  trustee,  for  the  payment  of  his  del  its, 
it  ivas  held  that  only  the  interest  of  the  tenant  for  life  was  sul>- 
ject  to  the  execution,  the  remainderman  having  paited  with  his 
legal  estate,  and  having  no  such  resulting  trust  as  was  liable  to 
execution.  And  although,  in  the  same  deed  of  trust,  a  tract  of 
land  was  conveyed  for  the  same:  purposes,  and  the  debts  were  all 
satisfied  by  the  sale  of  the  land,  after  t  he  institution  of  an  action 
for  the  slave  forced  on  the  levy,  yet  this  did  not  enlarge  the 
interest  in  the  slave  which  was  obtained  by  the  levy.  Barham 
v.  Massey,  5  Ired.,  192. 

25.  The  lessors  of  the  plaintiff,  in  action  of  ejectment,  claimed 
under  a  sale  on  an  execution,  tested  in  March,  1832,  against 
one  Lewis,  the  defendant  showed  that  Lewis  had  only  an  equi- 
table title,  and  that  by  a  bond,  dated  in  January,  1832,  he  had 
contracted  to  sell  the  same  to  the  defendant;  and  it  was  held 
that,  the  title  of  Lewis  being  only  equitable,  the  defendant  could 
not  be  estopped  from  insisting  thereon ;  and,  further,  that  Lewis, 
by  his  bond,  had  conveyed  all  his  equitable  interest  to  the  de- 
fendant, before  the  teste  of  the  plaintiff's  execution,  so  that  there 
was  nothing  on  which  the  execution  could  be  levied.     Edney  v. 

Wilson,  5  Ired.,  233. 

26.  Where  negroes  are  conveyed  to  a  trustee,  in  trust  "to  be 
kept,  hired  out,  or  otherwise  disposed  of,  for  the  maintenance 
and  support  of "  the  cestui  que  trust,  the  cestti  que  trust  has  no 
such  ecjuitable  interest,  as  is  the  subject  of  execution  under  the 
act  of  1815.     IIcGee  v.  Hussey,  5  Ired.,  255.     (Rev.  Code,  ch.  45, 

wsec.  4.) 


EXECUTION.— I.  537 

27.  The  principle,  well  established  by  the  courts,  is,  that  the 
legal  estate  is  not  to  he  transferred  or  divested  out  of  the  trustee 
by  ;ui  execution,  unless  that  may  be  done  without  affecting  any 
rightful  purpose,  ior  which  that  estate  was  created  or  exists. 
Where  the  cestui  que  trust  has  noi  the  unqualified  right  to  call 
for  the  legal  estate  immediately,  as  where  tin-  nature  of  the  trust 
requires  it  to  remain  in  the  hands  of  the  trustee,  who,  by  the 
terms  of  the  deed,  is  to  do  acts  from  time  to  time,  the  act  of 
1-812,  authorizing  the  sale  of  equitable  inter  :sts,  does  not  apply. 
II  t'« ' 

28.  The  interest,  which  a  railroad  corporation  lias  in  the  land 
condemed  for  its  use.  may  be  sold  under  an  execution  against 
the  corporation,  although   the  corporate  franchise  itself  cannot 

under  an  execution.     And  the  right  of  transporting  per- 
sons or  things,  over  the  land  of  another,  fur  till,  is   but  an 
ment  united  with  a  franchise,  and  is   not  distinguishable   from 
Other  franchises.     State  v.  litres.  .">  [red.,  299. 

2[l  Land,  which  has  been  vestedin  a  railroad  company  forthe 
use  of  the.  road,  it'  sold  by^execution,  belongs  to  the  purchaser. 
until  the  charter  of  the  company  would,  by  its  limitation,  have 
expired.     Ibid. 

30.  A  railroad  is  not,  in  all  respects,  a  highway  pubUci  juris, 
but  it  is  tin,'  subject  of  private  property,  and,  in  that  character, 
is  liable  to  1m-  sold,  unless  the  sale  lie  forbidden  by  the  legisla- 
ture; not  the  franchise,  hut  the  land  itself  constit  uting  the  road. 
Ibid. 

31.  Where  land  is  rented  for  a  share  of  the  crop,  an  execu- 
tion cannot  be  levied  on  the  lessor's  share,  until  it  has  been  al- 
lotted to  him  by  the  lessee.     Gordon  Armstrong  5  Ired.,  409. 

32.  The  act  of  1812,  subjecting  the  equity  of  redemption  to 
an  execution  at  law,  includes  not  onh  express  mortgages,  but 
also  those  that  were  intended  to  be  securities  in  the  nature  of 
mortgages,  and  so  held  to  be  by  the  construction  of  a  court  of 
equity.  Davis  v.  Evans,  5  Ired.,  525.  (See  Rev.  Code,  eh.  45, 
sec.  5.) 

33.  The  act  of  1812  was  not  intended  to  embrace  any  case,  in 
which  the  trustee  could  not  voluntarily  convey  to  the  debtor  th'e 
legal  estate,  without  incurring  a  breach  of  trust  to  other  per- 
sons, with  whose  interests  he  is  alsocharged.  Battle  v.  Petway, 
5  Ired.,  576.     (See  Rev.  Code,  eh.  45,  sec.  4.) 

34.  Where  the  court  of  equity  cannot  decree  a  conveyance  of 
the  legal  title,  at  the  suit  of  the  cestui  que  l rust,  the  trustee's  es- 
tate cannot  be  divested  by  a  sheriff's  sale,  under  an  execution 
against  the  cestui  que  /nisi,     il.i  I. 

35.  A  vested  remainder  or  reversion  in  slaves  may  be  sold 
under  a  //.  f'n..  subject  to  the  temporary  right  of  a  hirer,  or  other 
particular  tenant.      Carter  v.  Spencer,  7  Ired,  14. 

36.  Where  a  slave  has  been  conveyed  by  a  deed  in  trust  for 


538  EXECUTION.— I. 

the  payment  of  debts,  such  slave  cannot  be  levied  on  and  sold,. 
under  an  execution  against  him  who  executed  the  deed,  at  least 
while  any  of  the  debts  remain  unpaid.  Thompson  v.  Ford,  7,' 
Ired.,  418. 

37.  Where  one  agreed,  by  parol,  to  convey  a  tract  of  land  to  ■ 
B,  upon  condition  that  he  would  build  a  house  upon  it,  but,  be- 
fore this  was  done,  C  levied  an  execution  against  B,  on  his  inter- 
est in  the  land,  and  then  the  owner  conveyed  the  land  to  D,  an- 
tedating the  deed,  with  the  view  of  overreaching  C's  execution, 
it  was  held  that  the  mere  antedating  the  deed  did  nut  make  it 
fraudulent  and  void;  and  further,  that  B,  having  only  a  parol 
contract  for  the  sale  of  the  land  to  him,  had  no  equitable  claim 
for  it,  which  was  liable  to  execution,  under  the  act  subjecting 
equitable  interests  in  land  to  sale  under  execution.  Patterson  v. 
Bodenhammar,  9  Ired.,  96. 

38.  Under  an  execution  to  sell  the  lands  descended  from  A  to 
P>,  the  sheriff  has  no  authority  to  sell  lands  devised  by  A  to  B, 
and  if  such  sale  be  made,  it  will  lie  void.  Raifordv.  Peden,  10 
Ired.,  466. 

39.  An  officer,  who  has  an  execution  against  a  tenant  in  com- 
mon of  chattels,  may  levy  upon  the  undivided  property,  and 
take  it  into  his  possession,  for  the  purpose  oi  selling  the  interest 
of  the  defendant  in  the  execution  ;  and  be  will  net,  thereby,  sub- 
jecthimsell  to  an  action  by  the  other  tenant  in  common.  BJe- 
vins  v.  Baker,  1 1  [red.  291. 

40.  A  reversion  in  fee,  aftei  a  term  of  years,  is  the  subject  of 
execution;  the  sheriff's  deed  is  a.s  effectual  to  pass  it  as  that  of 
the  reversioner;  and  the  tenant,  who  claims  under  such  deed,  is 
not  estopped  from  setting  it  up  as  a  bar  to  an  action  of  eject- 
ment by  the  reversioner.     Murrill'v.  Roberts,  11  [red.,  424. 

41.  A.  by  a  bonajide  deed,  proved  and  registered  in  May,  1843, 
conveyed  a  slave  to  13,  in  trust  to  secure  the  payment  of  certain 
debts:  and  B,  by  deed,  conveyed  the  slave  to  C  for  a  certain 
price,  all  of  which  was  afterwards  paid  by  A,  except  $100.  C 
then,  by  deed,  dated  in  1847,  and  proved  in  18-19,  in  considera- 
tion of  said  $100,  conveyed  the  slave  to  D;  and  it  was  held  that 
though  I)  might  have  taken  the  conveyance,  yet,  while  the 
property  remained  in  that  situation,  the  $100  not  being  paid, 
A  had  no  such  interest  as  was  liable  to  an  execution  against 
him,     Griffin  v.  Richardson,  11  Ired.,  439. 

42.  When  a  vendor  of  land  retains  the  title  as  a  security  for 
the  purchase  money,  and  a  balance  remains  due,  the  vendee  has 
not  such  an  interest  as  is  liable  to- execution  under  the  act,  Rev. 
Stat.  eh.  45,  sec.  4,  so  as  to  divest  the  legal  title  of  the  vendor.  Bad- 
ham  v.  Cox,  11  Ired.,  456.     (See  Rev.  Code,  eh.  45,  sec.  4.) 

43.  Under  a  vend.  expo,  against  land,  the  sheriff  can  sell  only 
that  which  he  could  have  sold  under  the//,  fa.,  on  which  the 


EXECUTION.— L  539 

vend,  expo,  issued,  while  such  Ji.fo.  remained  in  his  hands  mire- 
turned.     Ibid. 

44.  If  the  defendant  in  an  execution  has  no  interest  in  land, 
which  is  subject  to  be  levied  on,  while  the  fi-fa.  remains  in  the 
hands  of  the  sheriff  uureturned,  but  after  the  return  he  acquires 
a  title,  which  is  subject  to  execution,  this  subsequently  acquired 
title  cannot  be  sold  under  a  vend.expo.  issuing  upon  such/?./a.  Hid. 

45.  Such  subsequently  acquired  title  shall  not  operate  as  an 
estoppel  in  favor  of  a  purchaser  at  a  sale,  made  under  such  vend. 

as  the  law  only  sells  estates  under  its  process,  and  not  the 
s  of  an  estopp  I     Ibid. 

46.  An  officer  may  levy  an  execution  upon  a  standing  crop. 
provided  it  is  matured;  as  the  act  of  1844,  ch.  35,  which  pro- 
hibits officers  from  levying  executions  "on  growing  crops," 
embraces  only  crops  which  are  not  matured.  Shannon  v.  Jones, 
12  Ired..  206.     (See  Rev.  Code,  ch.  45.  sec.  11.) 

47.  Where  A  contracted  for  land,  and  upon  paying  for  it,  had 
the  title  made  to  B,  with  a  fraudulent  intent  to  hinder  and  de- 
lay his  creditors,  and  afterwards,  with  the  same  fraudulent  in- 
tent on  the  part  of  A,  the  land  was  conveyed  to  C,  who  sold  and 
conveyed  it  in  exchange  for  a  mare;  it  was  held  that  A  had  no 
such  interesl  in  the  mare  as  could  be  levied  on  and  sold,  under 
an  execution  against  him.     Parris  v.  Thompson,  1  Jones  57. 

48.  A  person,  who  has  hired  a  horse  for  a  year,  has! such  an 
interest  in  him  as  may  be  levied  on  and  sold  under  execution: 
and  the  bill  of  sale  executed  by  the  officer,  though  purporting 
to  convey  the  absolute  interest  in  the  horse,  will  only  pass  such 
as  the  debtor  had.     H<,>:st,,it  v.  Simpson,  1  Jones  513. 

49.  Where  a  son  bought  a  tract  of  land  with  tin1  money  of  his 
father,  and  took  tin-  deed  in  his  own  name,  but,  for  the  use  and 
benefit  of  his  father,  and  for  the  purpose  of  defrauding  his 
father's  creditors,  it  was  held  that  the  land  was  not  liable  to  be 
sold  under  an  execution  against  the  father,  by  virtue  of  the  act 
of  1812.  In  such  ease  the  remedy  is  in  equity.  Jimmerson  v. 
Duncan,  3  Jones  537.     (See  Rev;  Code,  ch.  45,  sec.  4.) 

50.  Where  a  husband  buys  land  and  pays  for  it  with  his  own  mo- 
ney, but  directs  that  tin.' title  shall  be  made  to  a  third  person  in  trust 
for  his  wife,  he  has  no  such  trust  estate  as  can  be  sold  under  ex- 
ecution against  him.      Williams  v.  Council,  4  Jones  iiH\. 

51.  Where  a  trust  is  divided  by  giving  a  particular  estate  to 
A,  with  the  remainder  or  reversion  to  B,  the  trust  estate  of  A 
cannot  be  sold  by  execution,  under  the  act  of  1812.     IJiid. 

52.  Where  the  purchaser  of  property,  real  or  personal,  has  the 
title  ma.de  to  another,  on  a  secret  fraudulent  trust  for  himself,  it 
cannot  be  subjected  to  the  payment  of  his  debt,  by  an  execution 
against  him  at  law,  but  the  plaintiff's  remedy  is  in  equity. 
Murris  v.  Rippy,  4  Jones  533. 

See    (Deed— Deeds   in    trust    1) — (Fixtures   2-3) — (Fraud — 


540  EXECUTION.— II. 

Conveyances,  agreements,  &c,  fraudulent  as  to  creditors,  11) — 
(Release  4.) 

II.       WHEN    AND  TO    WHAT    COUNTY    AN    EXECUTION    MAY    ISSUE,  AND   OF  ITS 
RETURN. 

1.  The  court  will  not  permit  an  execution  to  issue,  until  after 
the  close  of  the  term,  at  which  the  judgment  was  obtained. 
Pettiford  v.  Sanders,  1  Hay.,  399  (459.) 

2.  A  return  mi  an  execution  by  a  sheriff  of  a  private  matter 
between  himself  and  the  plaintiff  in  the  execution,  e.  g.,  "pay- 
ment to  the  plaintiff,"  or  indulgence  by  the  plaintiff,"  is  no  evi- 
dence for  the  sheriff  in  a  suit  brought  against  him  by  the  plaintiff 
in  the  execution;  but  between  third  persons  such  return  is  evi- 
dence.     Bank  of  Newbern  v.  Pullen,  4  Dev.,  297. 

3.  "Nulla  bona"  is  the  proper  return  for  a  sheriff,  where  one 
creditor  postpones  the  sale,  and  then  another  proceeds  to  sell 
an     exhausts  the  property.     Ibid. 

4.  A  levy  by  a.  sheriff  upon  goods,  where  they  remain  in  the 
possession  of  the  defendant,  is  no  payment  or  satisfaction  of  the 
judgment,  and  a  new  execution  may  issue,  as  well  where  there 
are  several  defendants,  as  where  there  is  but  one.  Binford  v. 
Alston,  4  Dev..  351. 

5.  It,  at  the  time  a  judgment  is  obtained,  the  parties  agree  that 
an  execution  shall  not  issue  for  a  certain  time,  which  is  duly  en- 
tered of  record,  the  time,  within  which  a  plaintiff  can  take  out 
execution,  is  extended  to  twelve  months  and  a  day  from  the  ter- 
mination of  the  specified  time,  and  no  execution  can  issue  in  the 
mean  while,  except  by  order  of  the  court.  Wood  v.  Baijlcy,  12 
Ired.,  83. 

t).  Where  a  decree  was  made  in  the  county  court  in  favor  of 
the  plaintiffs,  on  a  petition  for  alegacy,  in  which  there  were  sev- 
eral plaintiffs,  one  of  whom  is  the  executor  of  a  deceased  Legatee, 
and  this  executor  died  before  satisfaction,  or  execution  sued  out. 
the  right  to  the  legacy  of  the  deceased  legatee  vests  in  the  ad- 
ministrator Jr  bonis  non,  but  he  is  not  entitled  to  have  execution 
until  he  has  made  himself  a  party,  either  by  sci.  fa.,  or  accord- 
ing to  the  course  of  courts  of  equity.  EUiston  v.  Andrews,  12 
Ired.,  188. 

7.  Where  several  legatees  obtain  a  decree  against  executors 
for  a  monied  legacy,  the  decree  is  several,  and  each  is  entitled  to 
a  separate  execution  for  his  share.     Ibid. 

8.  Suits  for  legacies,  distributive  shares,  &o,  in  the  courts 
of  law  by  petition,  are  considered  in  the  nature  of  proceed- 
ings in  equity,  in  respect  to  the  pleadings,  taking  the  ac- 
counts, decreeing  and  rehearing  or  reversing;  and.  also,  as  to 
process  of  execution  on  the  decrees.     Ibid. 

9.  Where  a  writ  of  capias  ad  respondendum  was  issued  against 


EXECUTION.— II. -III.  541 

three  defendants,  of  whom  two  lived  out  of  the  county,  and  the 
third  in  the  county,  where  the  writ  issued  and  the  judgment 
was  obtained,  it  was  held  that,  in  the  absence  of  special  instruc- 
tions, the  clerk  might,  under  tin-  act  of  1850,  eh.  17.  issue  the 
execution  to  either  county  of  the  residence  of  the  different  de- 
fendants. Bank  of  Cape  Fear  v.  Stafford,  •!  Jones,  98.  (Sec 
Rev.  Code,  oh.  4.">.  sec.  29. ) 

K).  Under  the  ac1  of  L850,  the  endorsement  of  the  date  of  the 
issuing  of  the  i   should   be  on  the  record  of  the  court, 

and  not  upon  the  process  of  execution.     Ibid. 

11.  An  allegation  in  a  sci.  fa.  against  a  clerk,  that  he  failed 
to  issue  an  execution  To  one  county,  when  ho  had  an  option  to 
issue  it  to  thai  or  to  an  ither  a  unty,  is  not  sufficient  to  justify 
an  amercement  under  the  act  of  1850.     Ibid. 

12.  The  provi  '  >r.  i  of  the  Revised  <  'ode,  eh.  31,  see.  50,  requi- 
ring tie  dts,  proi  ess,  &c,  to  be  made  to  the  first 
dayofttt  I  ra  to  which  they  are  returnable,  do  not  apply  to 
writs  nl  175. 

Seo  (  Exi  suti  a — Of  the  discharge  of  the  defendant  in  the  ex- 
ecution 

III.        LEVY    AXD    SALE,    AND    APPLICATION    OF    MONET!    RAISED. 

1.  A  sale  'I  land  by  a  sheriff  is  valid,  though  lie  dots  not 
return  I  arv.  Hamilton,  Tay.,  10,  (7.) 

2  The  sum  raised  upon  an  execution,  if  insufficient  to  dis- 
charge the  plaintiff 's  judgment,  must  be  applied  solely  to  his  usgtj 
and  the  costs  ol  the  di  R  udant's  witnesses  cannot  be  paid  out  of 
the  money  tints  raised.     Pearson  v.  Haden,  1  Murph,  140. 

3.  If  on  sale  hid  for  a  personal  chattel,  ami  fail 
to  pay  I  I  reb;  becomes  void,  and  thesherifi  mayeitber 
expose  tli-'  chalti  !  again  at  public  sale,  or  take  the  next  highest 
bidder  as  the  purchaser,  by  receiving  the  money  and  making 
him  a  title.      Cummings  v.  Jfrdiil.  2  Murph..  ;!.">7. 

4.  If  a  constable  levy  an  execution  upon  a  horse,  and  then 
agree  to  Ie1  tie-  defendant  take-  him  home,  he  may  immediately 
reseize  him.  for  his  agreement  was  a  mere  voluntary  courtesy, 
and  either  the  levy  was  not  abandoned  by  it.  or,  it  abandoned, 
the  execution  being  unsatified,  the  officer  can  immediately  make 
a  new  levy,  which  vests  the  property  in  him.  Douglas  v.  Mitch- 
ell. 3  Murph.,  239. 

5.  If  a  sheriff  hive  levied  an  execution  against  chattels  in  due 
time,  h"  m. i.  die  levy,  by  a  sale  after  the  return  day, 
though  he  cannot  I.  •vv  after  that  day.  Laitieex.  Stone,  1  Hawks.. 
329. 

().  It  is  the  duty  of  oflicers  to  sell  lands  in  streh  way  as  to  raise 
the  most  money ;  but  a  Bale  en  masse  of  several  tracts,  held  under 
distinct  titles,  and   not  lying  contiguous,  was  supported,  it  not 


542  EXECUTION.— III. 

appearing  that  either  the  sheriff  of  purchaser  know  the  situation 
of  the  land.  Wilson  v.  Ttoitty,  3  Hawks.,  44,  S.  P.  Thompson 
v.  Hodges,  Ibid.,  51. 

7.  Where  a  sheriff  levied  on  land  and  negroes,  and  left  the 
negroes  in  the  defendswit's  possession,  taking  a  bond  for  their 
forthcoming  at  the  day  of  sale,  it  was  held  that  he  might  soil  the 
land,  in  the  event  of  the  non-production  of  the  negroes.  Wilson 
v.  Tioitty,  o  Hawks.,  44. 

8.  It  is  not  necessary  to  constitute  a  levy,  that  an  officer  should 
actually  touch  personal  property,  or  remove  it  out  of  the  defen- 
dant's possession;  hut  a  mere  delivery  by  the  defendant,  of  a  list 
of  his  negroes  to  the  officer,  is  not  a  levy;  though  had  the  ne- 
groes been  present,  and  had  the  officer  signified  tied  lie'  held 
them  bound  to  answer  the  execution,  and,  if  no  opposition  were 
made  to  the  officer's  possessing  himself  of  them,  if  he  desired,  it 
would  have  amounted  to. a  lew.  Gilh  i/  v.  Dickersont  ■">  Hawks., 
293. 

9.  A  levy  on  chattels  vests  in  the  sheriff  a  special  property, 
which  enables  him  to  sell  them  after  the  return  day.  without  a 
vend,  expo.;  hut  a  levy  on  land  gives  him  neither  property,  nor 
a  right  of  possession :  he  has  a  naked  authority  to  sell  only,  and 
his  sale  transfers  a  right  of  property  to  the  purchaser,  and  he 
cannot,  without  the  consent  of  the  tenant,  deliver  to  the  pur- 
chaser the  actual  possession,  It  follows  that  his  sale  of  land, 
after  the  return  of  the  execution,  and  without  a  new  writ,  is 
made  without  authority,  and  passes  no  title.  Burden  v.  McKiw 
vie.  4Hawks.,  279. 

10.  It  seems  that  a  levy  on  land,  shown  only  by  an  endorse' 
ment  on  the  Wril  made  after  the  return  day.  is   not  valid.      Ibid. 

11.  A  sale  of  land,  made  by  a  sheriff  on  the  return  day  of  a  fi. 
fa.  is'  good.     Tayhev.  Qashins,  1  Dev.,  295. 

1:.'.  A  sheriff  has  a  right,  at  his  own  peril,  to  apply  money 
raised  under  execution  to  any  writ  in  his  hands:  therefore,  M  here 
a  sheriff  had  a  number  of  fi.  fas.  in  Ins  hands,  of  equal  teste,  one 
of  which  was  an  alias  founded  on  a  prior  return  of  "too  late  to 
hand,"  and.  being  indemnified  by  the  plaintiff  in  a,  junior  fi.  fa.. 
sold  property  and  returned  that  he  would  not  have  acted  under 
any  of  the  writs  without  an  indemnity,  it  was  field  that  the. 
sheriff,  by  his  return,  had  appropriated  the  money  raised  to  the 
writ,  on  which  he  was  indemnified,  and  that  the  plaintiff,  in  the 
junior  fi.  fn..  was  entitled  to  it,  in  preference  to  those  writs, 
which  were,  in  all  respects,  equal  to  his,  but  also  to  the  alias. 
Yarborough  v.  State  Bank,  2  Dev.,  23, 

13.  Where  the  sheriff  has  raised  money  under  several  execu- 
tions, and  is  at  a  loss  how  to  distribute,  the  court  will,  in  a  sum- 
mary way,  upon  the  facts  stated  in  the  return,  advise  how  it 
should  be  distributed.  But  where  a  sheriff  voluntarily  makes  an 
appropriation  of  money  in  his  hands  to  one  of  several  executions. 


EXECUTION.— Ill  543 

the  court  will  not,  upon  a  rule,  deprive  the  plaintiff  in  that  exe- 
cution of  the  money  thus  paid  him,  but  leave  the  persons  ag- 
grieve.1  to  their  action  against  the  sheriff.  Washington  v.  Sun- 
ders, 2  Dev.,  343. 

14.  Where  A  sued  out  an  original  attachment,  directed  to  the 
sherift  or  any  constable,  and  returnable  before  the  county  court 
or  any  justice,  but  at  at  no  certain  day.  which  was  levied  by  a 
constable,  and  afterwards  Bsued  out  an  attachment  against  the 
same  person,  and  levied  upon  the  same  property,  which  was,  in 
all  respects,  regular,  and  he  obtained  the  first  judgment  and  issued 
his  vend,  expo.,  upon  which  the  sheriff  returned  a  sale  and  paid  the 
money  into  court ;  and  afterwards  A  obtained  a  judgment  ancl 
took  out  execution;  upon  a  rule  to  distribute  the  money,  it  was 
held  that  the  return  of  the  sheriff  was  an  appropriation  of  the 

to  the  first,  exei  ution.     Ibid. 

15.  Upon  rules  on  the  sheriff  to  apply  money  in  his  hands  to 
particular  writs  of  execution,  the  court  proceeds  solely  upon  the 
tacts  stated  in  his  return ;  and  affidavits  of  extrinsic  tacts  will  not 

1  v.  Clark,  2  Dev.,  M.">4. 

li>.  The  sheriff  is  not  such  an  agent  of  the  defendant  in  an 
execution,  that  an  action  will  lie  in  the  name  of  tic  fitter  against 
the  purchaser  at  an  execution  sale,  for  the  excess  of  Ids  bid  be- 
yond the  amount  of  his  execution.   Coxe  v.  Camp,  2  Dew\,  502. 

17.  An  execution  is  an  entire  thine,-,  and  must  be  completed 
by  the  hand  which  begins  it;  hence,  where  a  fi.  /'<<.  was  levied 
by  one  sheriff,  and  a  vend.  expo,  issued  to  his  successor,  it  was 
held  thai  the  latter  could  not  do  any  official  act  under  the  writ, 
and   was  not,  therefore,  entitled  to  commissions.     Sanderson  v. 

,31  >ev.,  38. 

18.  A  levy  vests  a  properly  in  personalty  in  the  sheriff,  to 
which,  upon  his  death,  his  executor  succeeds;  and  upon  his 
death":  ■  against  him  or  his  executor  is 
the  pr<         process       i  bid. 

1".    I  death  of  a  sheriff,  his  successor  must,  at  his  pe- 

ril.  tak  i r  in   custody  upon   a   ca.  sa.     Hut 

when:'  i     beriff  is  living,  he  must  deliver  the  prisoners  M 

and  give  notice  oi  the  executions,  wherewith  they 
^recharged,  or  he  remains  liable.     Ibid. 

2*1  Actual  possession  is  not  necessary  to  the  validity  of  a 
afficient  if  the  goods  are  subjeel  to  his 
'  v.  Rbscoe,  3  Dev.,  50. 

21.  Where  the  sheriff  has  two  writs  off.  fa.  in  favor  of  the 
same  plaintiff,  and  against  a  principal  debtor  alone,  and  another 
against  the  saine  debtor  and  a  surety,  and  raises  mdiiey  by  a 
sale  under  both  writs,  it  is  to  be  applied  pro  rata  as  to  both; 
ami  neither  the  sheriff  nor  the  plaintiff  can,  by  a  subsequent  ap- 
plication, affect  the  right  of  the  surety  to  have  the  judgment 
against  him  discharged  prd  tanto,     Hill  v.  Child,  3  Di  v.,  265. 


544  EXECUTION.— III. 

22.  A  fi.  fa.  vests  a  property  in  goods  seized  under  it  in  the 
sheriff;  but  as  to  land,  it  confers  upon  him  only  a  power  to  sell. 
Goods  may,  therefore,  be  sold  by  a  sheriff  under  a  previous  levy, 
without  a  venditioni;  but  a  sale  of  land  without  such  authority 
is  inoperative.     Ibid. 

23.  Where  a  sheriff  levies  a  fi.  fa.  on  land,  and  goes  out  of 
office,  a  venditioni  must  bo  directed  to  bis  successor.     Ebd. 

24.  An  executory  devise  in  land  is  not  destroyed  by  ;i  sale; 
under  an  execution  against  the  first  devisee.  Southerlandv.  Cox, 
.".  Dev.  :-!!l4. 

2;">.  A  s^le  of  the  estate  of  one  tenant  in  common,  under  an 
execution  against  all,  does  not  divest  the  estate  of  the  others. 
Ibid. 

26.  The  vendee  of  land,  bound  by  a  fi.  fa.,  cannot  maintain 
an  action  against  the  sheriff,  for  selling  that  land  under  the 
writ,  instead  of  the  chattels  oi  the  defendant;  such  action  being 
personal  to  the  defendant  in  the  fi.  fa.  v.  Parker,  3 
Dev.,  425. 

27.  A  sale  of  land  under  a  fi.  fa.,  made  after  the  return  day. 
but  before  it  is  r  turned,  is  valid,  though  the  sale  was  not  opened 
on  the  first  day  appointed,  and  wits  made  on  a  day  to  which  it 
was  postponed.     Morded&i  v.  Speight,  3  Dev.  428. 

28.  A  sah'  of  lands  by  the  sheriff,  under  execution,  is  not 
within  the  act  of  1819,  making  void  parol  contracts  tor  the  side 
of  land  and  slaves.     Tatev.    Greenlee,  4  Dev.,  149.      (See  Rev. 

'    ode.   ell.    "ill.  see.   11.) 

29.  An  endorsement  on  an  execution  by  the  plaintiff,  or  his 
attorney,  is  n  i  pari  of  the  execution,  hut  may  be  regarded  by 
the  sheriff  as  instructions  to  him,  from  such  plaintiff,  or  his 
attorney.     Barl  r  v.  Munroe,  4  Dev..  412. 

30.  A  sheriff,  who  has  seized  property  sufficient  to  satisfy  an 
execution,  and  surrendered  it  on  receiving  a  forthcoming  bond, 
is  entitled,  upon  a  breach  of  the  bond,  to  recover  the  amount  of 
the  judgment,  although  he  may  not  have  paid  it  to  the  plaintiff 
in  the  execution.     Fonter  v.  Frost,  4  Dev.,  424. 

31.  A  sheriff  is  not  bound,  independent  of  the  act  of  1826,  to 
levy  an  execution  and  raise  the  money,  upon  the  property  of  the 
principal  debtor,  iii  preference  to  that  of  the  surety.  And  if 
he  even  combines  with  a  third  person  to  throw  the  debt  upon 
t!ie  surety,  when  he  might  have  made  it  out  of  the  principal,  he. 
does  not  thereby  render  himself  liable  to  the  action  of  the  sure- 
ty. Eason  v.  Petway,  1  Dev.  and  Bat..  44.  (See  Eev.  Code.  eh. 
31,  sec.  124  and  125.) 

32.  As  to  a  sheriff,  except  under  the  act  of  1826,  all  the  de- 
fendants in  an  execution  are  principals,  and  he  may  levy  upon 
the  property  of  either  and  in  what  proportions  he  pleases.  Ihid. 

33.  A  sale,  under  an  execution,  of  a  growing  crop,  made  at 


EXECUTION.— III.  545 

the  distance  of  two  miles  from  the  place  where  the  crop  stands, 
is  void,  and  passes  no  title  to  the  purchaser;  for  the  law  always 
requires  the  presence  of  personal  chattels  in  sales  under  execu- 
tion.    Smith  v.  Tritt.  1  Dev.  and  Rat..  241. 

34.  After  an  execution  sale  of  unripe  growing  grain,  it  is  in 
custodia  legis  till  it  ripens,  after  which  the  purchaser  has  a  reas- 
onable time  to  rut  andcarryit  away.  Ibid.  (BytheRev.  Code, 
chap.  45.  sec.  11,  growing  crops  cannot  he  levied  oil  and  sold 
under  ex  --11111111.  y  are  matured.) 

35.  To  t!i"  1  ivy  of  a  writ  upon  personal  property,  whether  a 
writ  0f  attachment  or  execution,  the  law  requires  a  seizure.  If, 
in  the  nature  of  the  thing,  actual  seizure  lie  impossible,  then 
some  notorious  act.  as  nearly  equivalent  to  actual  seizure  as  pos- 
sible, must  he  substituted  for  it.  Hence,  in  levying  upon  a  grow- 
ing crop,  i ci  1'  must  go  to  the  premises,  and  there  announce 

that  In-  seize  1  to  answer  tin-  exigency  of  his  writ.  State 

.  1    Dev.  and  Ba  ..  3s4. 

.">i;.  Where  an  execution  authorizes  the  sheriff  to  sell  all  the 
lands  of  the  defendant,  lying  on  the  headof  a  particular  mill 
pond,  and  adjoining  the  lam  Is  of  a  particular  person,  if  the  lands 
embraced  in  that  description  coiuprehi  ad  mere  tracts  than  one, 
a  sale  en  masse  will  be  supported,  in  the  ab  1  nee  of  fraud  on  the 
part  of  the  sheriff  and  purchaser.  Huggins  v.  KetclvOjm.,  4  Dev. 
and  Bat.,  414. 

.'i7.  After  the  return  of  a  fi.  fa.  regularly  levied  on  land,  the 
sheriff  cannot  sell  the  land  without  a  new  writ  giving  him  that 
authority.     Loin    v.    Gates,  '1  Ired.,  14. 

38.  It  seems  thai  an  officer  does  not,  in  any  case,  become  a 
jtrespasser  by  seizing  under  an  execution  privileged  articles,  such 
as  arms  for  urn  •: er.  I  lertainly  he  does  not  become  so,  unless  he 
seizes  them  with  a  knowledge  that  they  are  privileged  goods. 
State  v.  Morgan,  3  Ired..  186. 

39.  If  goods  I"-  taken  under  a  fi.  fa.,  they  vest  in  the  officer, 
and  he  may  sell  them  after  he  has  returned  the  writ,  and  at  any 
distance  of  time.  And  if  he  do  not  sell,  the  plaintiff  can  compel 
him  by  a  vend,  expo.,  and  this  he  may  sue  out,  in  like  manner, 
at  any  distance  of  time.     Smith  v.  Spencer.  '■)  Ired.,  256. 

40.  When  land  is  levied  on,  the  plaintiff  may  sue  out  a  vend*, 
expo,  at  any  subsequent  time,  before  the  debt  is  satisfied,  with- 
out regard  to  the  year  and  a  day.  and  without  resorting  pre- 
viously tn  a  sd.  /".■  and  a  sale  under  such  a  vend.  expo,  will  be 
good  against  the  defendant  in  the  execution,  and  those  who  claim 
under  him;  but  the  laches  of  the  plaintiff  in  not  enforcing  a  sale 
may  entitle  creditors  having  younger  executions  to  be  preferred. 

41.  Qucere,  whether  the  114th  see.  of  the  31st  ch.  of  the  Rev, 
Stat.,  (Rev.  Code,  ch.  31,  sec.  109,)  has  altered  this  doctrine 
Ibid. 

42.  Where  a   sheriff,  having  several  writs  of  fi.  fa.  and  vend 

35 


546  EXECUTION.— ITT. 

expo,  against  a  person,  at  the  instance  of  different  creditors,  takes 
an  indemnifying'  bond  from  one  of  the  creditors,  and  sells,  in 
consequence  of  that  indemnity,  he  has  no  right  afterwards  to 
apply  to  the  court  for  its  advice,  as  to  the  distribution  or  pay- 
ment of  the  money  raised  by  the  sale,  especially  when  he  has 
not  paid  the  money  into  court.     Eamsour  v.  Young,  4  Ired.,  133; 

43.  Advice  given  bythe  court,  on  such  an  ex  parte  application, 
will  not  bind  any  of  the  creditors,  who  may  still  pursue  their 
remedy  against  the  sheriff,  if  they  think  themselves  aggrieved 
by  his  refusal  to  pay  them.  When  the  court,  however,  proceeds 
on  such  application  to  give  its  advice,  the  proceeding  being  eas 
parte,  none  of  the  creditors  can  appeal.     Ibid. 

44.  A  sale  of  a  crop  of  com  in  a  field,  by  a  sheriff  under  exe- 
cution, is  good,  although  the  sheriff  was  not  in,  nor  immediate- 
ly at  the  held,  if  he  were  near  enough  to  be  in  plain  view,  so  that 
bidders  saw  what  they  were  bidding  for;  for  that  is  the  purpose 
ol  requiring  the  thing  sold  to  be  present.  Skinner  v.  Skinm  r,  I 
Ired.,  175." 

45.  On  the  application  of  a  sheriff  for  the  advice  of  the  court, 
how  he  is  to  apply  moneys  raised  by  him  under  several//,  fcs.  on 
judgments  in  court,  and  writs  of  vend.  expo,  i  suing  on  orders"  foB 
the  sale  of  land  levied  orl  by  a  justice's  execution,  the  court  will 
not  look  behind  the  orders  of  sale  and  the  vend,  expos,  issuing 
thereon.      IVJritaker  v.  Petway,  4  [red.,  182. 

46.  A  fi.  fa.,  although  it  creates  a  lien  on  property,  which  pre- 
vents the  owner  from  selling  it.  unless  subject  to  the  lien, 
does  not  divest  the  property  out  of  the  debtor,  until  a  seizure; 
and  even  after  the  seizure,  the  sheriff  ""mi.-;  but  a  special  prop- 
erty, such  as  is  necessary  lor  the  itisfa  n  of  the  debt,  and 
leaves  in  the  original  owner  the  general  which  is  an 
interest  that  he  may  convey  and  sell  at  law.  Tnerehflfe,  where 
the  plaintiff  received  a  bona                                   '  property!  which 

nbject  to  the  lien  of  a  fi.  fa.,  and  the  defendant,  after  the 
date  of  such  conveyance,  levied  execution:  from  a  justice  on  the 
said  property,  and  the  same  was  sold  by  the  sheriff  and  the  con- 
liable  jointly,  the  plaintiff  is  entitled  to  recover  from  the  defen^ 
dant,  who  caused  the  property  to  be  sold  under  the  justice's  exe- 
cution, and  received  the  amount  of  such  sal  .  the  excess  of  what 

:  itfficient  to  satisfy  the  sheriffs  execution.  Alexander  v. 
pprings,  5  Ired.,   175. 

47.  Ifa  sheriff  sell,  under  an  execution,  property  which  does 
not  belong  to  the  defendant  in  the  execution,  and  the  plaintiff 
in  the  execution,  with  a  knowledge  that  the  money  was  so 
wrongfully  raised,  receives  it  from  the  sheriff,  he  is  guilty  of 
the  tort  equally  with  the  sheriff.  But  where  the  real  owner  of 
the  property  is  present  at  the  sale,  and  does  not  object  to  it.  but 
acquiesces  in  it,  he  cannot  support  an   action   of   tort   against 


EXECUTION.— III.  547 

either  the  sheriff  or  the  plaintiff  in  the  execution,  who  receives 
the  amount  raised  by  the  sale.     Lenta,  v.   Chambers,  5  Irecl.,  587. 

48.  An  officer,  who  under  a  fi.  fa.  seizes  a  horse  and  mule. 
puts  them  in  a  stable  on  the  premises  of  the  defendant  in  the 
execution,  and  sleeps  on  the  premises  during  the  night  of  the 
seizure,  has  such  a  possession  as  will  entitle  him  to  an  action 
against  another  officer,  who  goes  during  that  night  and  takes 
away  the  property  under  another  fi.  fa.  ffivesv.  Porter,  7  Ired.. 
74. 

4'J.  It  would  be  unm  cessary  to  require  an  officer  to  remove 
property  instantly;  as  it  answers  all  the  purposes  of  giving  no- 
toriety to  the  levy,  for  the  officer  to  take  possession  of  the  pro- 
perty on  the  premises,  provided  he  remains  there  with  it,  so  as  to 
be  able  to  exercise  over  it  that  dominion,  which  owners  in  pos- 
session usually  exercise,     ibid. 

50.  It  is  tlie  duty  of  an  officer  to  sell  property  levied  on  in  a 
way  to  bring  the  best  price,  unless  the  parties  interested  con- 
sent that   tii  ■  sal'-  may   be   made   in  a   different  way.     State  v. 

Mb  ■  ■■ .  7  Ired.,  387. 

51.  A  Bheriff  cannot  apply  money  in  his  hands,  which  he  has 
cbllecte  1  ..'i  an  execution  m  favor  of  A.  to  the  satisfaction  of  an 
execution  in  his  hands  againsl  him;  though  itseems  he  may  levy 
an  execution  on  monev  in  the  possession  of  the  debtor.  Stat* 
v.  Lea.  8  Ired.,  94. 

52.  Where  an  execution  is  aboui  to  be  levied  by  a  constable, 
the  debtor,  if  he  have  personal  property,  must  show  it,  and  ifh'a 
do  not,  the  offic  -r  commits  no  wrong  by  levying  on  land  in  the 
Brat  instance.  So,  if  it  do  not  appear  that  the  officer  knew  of 
the  existence  ol  personal  property,  he  is  justifiable  in  levying 
on  the  real  estate.     Sloan  v.  Stanley,  11   [red.,  627. 

53.  A  sheriff  is  not  bound,  like  a  constable,  to  any  particular- 
ity in  Ins  return  of  a  levy  of  a  //.  fa.  on  land.  Judge  v.  Hous- 
ton, \i  Ired.,  108. 

54.  A  levy  of  an  execution  on  Sunday  is  void.  Bland  v. 
Whitfield,  I  Jones  12 2. 

55    The  return  ol                            rl  mi  an  execution  is  neitheq 

conclusive,  nor  />r'                            ce,  that  there  was  an  w     nl 
property.     Ibid. 

56.  \Y  .                 mtity  n['  unshuck  id  c  >rn    wa      I  I  <>•,  by  a 

1  II  ii  in  piles,  as  it  lies   m  shucked,     r, 

v.  Byrd.  3  Jones  397. 

57.  Th  s  qn  er  articles  levied  on  I  i  sold  in 
a  proper  manner,  law,  which,  therefore  the  court 
cannot  leave  to  the  jury.      /A/"'. 

58.  Where  property,  not  belonging  to  th  ■  d  in  an  ex- 
ecution, was  levied  upon  and  sold  by  the  officer  to  satisfy  tha 
same,  and  bought  by  the  plaintiff  in  the  exi  a  prico 
sufficient  to  pay  the  debt,  it  is  a  satisfaction  of  the  execution. 


548  EXECUTION.— III.-IV.-V. 

although  the  property  was  recovered  from  the  plaintiff  in  a  suit 
by  the  owner,  and  though  no  entry  of  satisfaction  was  made  on 
the  execution  or  judgment.  In  such  a  case  the  plaintiff  has  a 
remedy  against  the  defendant  in  the  execution,  under  the  act, 
Rev.  Stat.,  ch.  45,  sec.  22.  Halcombe  v.  Loudermilk,  3  Jones 
491.     (See  Rev.  Code,  ch.  45,  sec.  27.) 

59.  A  sale  of  the  franchise  of  a  corporation,  under  execution, 
by  virtue  of  the  10th  section  of  the  26th  chapter  of  the  Revised 
Code,  must  be  predicated  on  a  bid  for  the  entire  sum  demanded 
in  the  execution,  with  the  costs,  and  the  only  competion  allowed 
by  the  act  is,  as  to  who  will  take  the  income  of  the  corporation 
for  the  shortest  length  of  time,  Spaying  the  whole  debt  and 
oosts"  demanded  in  the  execution.  Where,  therefore,  the  bid 
was  for  a  small  fraction  of  the  debt,  though  for  a  term  far  short 
of  the  limits  of  the  franchise,  it  was  held  that  the  sale  was  void, 
and  the  purchaser  got  nothing.     Taylor  v.  Jerkins,  6  Jones  olli. 

See  (Act  of  Assembly  14-15)     (Fixtures,  2-3.) 

IV.   FORTHCOMING  BONDS  TAKEN  ON  A  LEVY. 

1.  In  a  forthcoming  bond  it  is  not  necessary  to  insert  the 
names  of  the  parties,  at  whose  instance  the  e:  -  cutions  levied  on 
the  property  have  issued.     Grady  v.  Tltreadgill,  13  Ired.  228. 

2.  No  form  is  prescribed  in  the  act  of  assembly  for  a  forth- 
cbming  bond,  and  a  condition  that  the  property  shall  be  forth- 
coming, or  be  delivered  at  the  time  and  place  of  sale,  is  suffi- 
cient.    Ibid. 

3.  The  obligors  in  a  forthcoming  bond  are  not  discharged,  be- 
cause the  return  day  of  the  executions  levied  is  before  the  day 
on  which,  by  the  terms  of  the  condition,  the  property  was  to  be 
delivered,  though  no  new  executions  were  issued.     Jliid. 

4.  To  enable  a  plaintiff  to  maintain  an  action  on  a  forthcom- 
ing bond,  it  is  not  necessary  for  him  to  have  paid  the  amount  of 
the  executions  to  the  plaintiffs  therein.     Ibid. 

5.  The  omission,  to  deliver  to  the  surety  in  a  forthcoming  bond 
a  descriptive  list  of  the  property  levied  on,  does  not  render  the 
Jbond  void.  It  is  a  privilege  of  the  surety,  and  he  may  waive, 
f>r  not  require  it,  if  he  think  proper.     Ibid. 

See  (Bonds — Of  the  construction  of  bonds,  and  of  their  con- 
dition, 7— <S— 25— 2(5. )  (Execution — Levy,  sale  and  application  of 
the  money  raised,  30.)  (Sheriff — Authority  of  sheriils,  and  reme- 
dy for  them,  {).)  (Sheriff — Duty  of  sheriffs  in  relation  to  pro- 
cess, its  execution  and  return,  1(3-17.)  (Surety  and  Princi- 
pal, 11.) 

V.       RIGIIT  TO  THE  SURPLUS  AFTER   SATISFACTION  OF  AN  EXECUTION. 

J .   The  person,  who  has  the  legal  title  to  property  sold  under 


EXECUTION.— V.  -VI.  549 

fxecution,  has  alone  the  right  to  recover  the  balance,  that  re- 
mains of  the  pro6eeds  of  the  sale,  ai'ter  satisfying  the  execution. 
Taylor  v  Williams,  1  Ired..  249. 

>.  Where  A  fraudulently  conveyed  a  slave  to  B,  and  A's  cred- 
itors afterwards  caused  the  slave  to  be  sold  by  execution,  and 
the  slave  sold  for  more  than  enough  to  satisfy  it.  it  was  held  that 
B,  the  fraudulent  vendee,  and  not  A.  the  fraudulent  vendor,  had 
a  right  to  recover  the  balance,  because,  as  between  them,  the 
legal  title  was  vested  in  B.  And  an  order  by  A  on  the  officer 
for  this  balance  in  favor  of  B,  and  presented  by  B,  does  not  alter 
acl  -  do  not  transfer  to  A  the  legal  title,  which 
iary  to  support  the  action.     Ibid. 

'.'>.  Where  an  equity  of  redemption  is  sold  under  an  execution 
against  the  mortgagor,  it  i?  only  his  interest  that  is  sold,  arid 
the  estate  of  the  mortgagee  is  not  touched.  Consequently,  the 
sum  bid  on  any  part  of  it  does  not  belongto  the  mortgagee;  but 
it  is  first  to  satify  the  execution,  and  the  surplus  goes  to  the 
mortgagor,  as  the  owner  (if  the  interest  sold,  or  to  those  who 
represent  him.     State  v.  Pool,  5  Ired.,  105. 

4.  Where  a  sale  of  property  under  execution  is  made  by  a 
sheriff  or  constable,  and  the  property  brings  more  than  the 
amount  of  the  execution,  it  is  the  duty  of  such  sheriff  or  consta- 
ble te  see  that  the  excess  is  paid  over  to  the  owner  of  the  prop- 
erty; ami  if  ho  fail  to  do  so,  he  is  liable  on  his  official  bond. 
State  v.  Reed,  .3  [red.,  357,  S.  C,  (5  Ired.,  80. 

See  (Mortgage,  12.)  (Sheriff — Authority  of  sheriffs  and  reme- 
dy for  them,  £2-13-14.) 

VI.       LIEN*  AND  PRIORITY  OF  EXECUTIONS. 

1.  A  fieri  facias  hinds  the  lands,  goods  and  effects  of  the  de- 
fendant from  it-  teste.  Winsteadv.  Winstead,  1  Hay,  243,  (280.) 
S.  ?.  Ingles  v.  DonaUson,2  Hay.,  57,  (222.) 

2.  The  sale  made  by  a  defendant,  when  an  execution  against 
him  is  in  the  sheriff's  hands,  is  invalid,  and  the  property  sold 
may  be  levied  upon  and  sold  under  the  execution.  Arnoldv. 
Bell,  1  Hay..  396,  (456.)    S.  V.  foglesv.  Donaldson,  lbidol,  (222.) 

3.  A  ji.  in.  binds  propi  rty  in  m  its  teste,  and  the  lien  ci  utili- 
ties, if  a  new  execution  he  taken  out  within  a  year  from  tin-  last 
return.     Quaere.      Williams  v  Bradley,  2  Hay..  363,  (556.) 

4.  Where  an  execution  on  a  justice's  judgment  was  levied  on 
land,  returned  to  court,  and  a  vend.  expo,  ordered;  and,  at  the 
same  term,  on  a  judgment  against  the  same  defendant  in  court, 
a  Ji.  fa.  issu-d  and  was  levied  on  the  same  land,  it  was  held  that 
tin.-  vend.  ...  /in.  was  to  be  first  satisfied,  tin-  lien  having  relation 
back  to  the  time  when  the  levy  was  made.  Lash  v.  Gibson,  1 
Murpli.,  266. 

5.  If  goods  be  levied  on,  and  a  return  thereof  be  made  by  the 


550  EXECUTION.— VI. 

sheriff,  and  the  plaintiff  sue  out  an  alias  fi.  fa.,  instead  of  a  vend, 
expo.,  the  levy  is  discharged,  and  the  plaintiff  cannot  have  a  dis- 
tringas  to  compel  the  sheriff  to  sell  the  goods.  Scott  v.  Hill,  2 
Murph,  143. 

6.  When  the  defendant  in  an  execution  sells  his  lands  after 
the  execution  is  in  the  sheriff's  hands,  the  sale  is  void,  and  the 
purchaser  under  the  execution  gets  the  better  title;  and  it  seems 
that  the  execution  bound  from  its  teste,  as  it  certainly  did  from 
itadelivery.     McLean  v.  Upchurch,  '2  Murph.,  353. 

7.  An  alias  fi.  fa.,  though  on  a  different  piece  of  paper,  is  con- 
sidered the  same  as  the  first  fi.  fa.,  as  to  the  lies  created.     Ibid. 

8.  writs  i '1/7.  fa.,  bearing  teste  of  tin:'  same  term,  and  put  into 
the  hands  of  the  sheriff  at  the  same  time,  although  issued  upon 
judgments  recovered  at  different  terms,  have  no  preference  over 
each  other,  and  must  be  paidjoro  rata,  it' the  money  levied  under 
them  be  not  sufficient  t<>  pay  all.  Jonesv.  Edmonds,  3  Murph.,  43. 

9.  When  a  sheriff  had  levied  an  execution  on  certain  lands, 
and  a  vend,  expo.,  together  with  a  special  writ  of  fi.  fa.,  issued 
afterwards  on  the  same  judgment,  and  was  levied  by  the  sheriff 
on  goods,  which  seven  days  prior  to  that  time  he  had  seized,  by 
virtue  of  a  fi.  fa.  issued  on  a  younger  judgment,  the  court  direct- 
ed the  proceeds  of  the  sale  to  be  paid  in  satisfaction  of  the  fi.  fa. 
which  first  came  to  hand,  and  was  first  levied.  Allemony  V.  Al- 
lison, 1  Hawks.,  325. 

10.  Where  the  plaintiff  in  an  execution  which  is  levied  upon 
property,  to  favor  the  defendant  in  the  execution,  forbears  to  have 
it  sold,  and  yet  holds  on  to  the  lien  thereby  created,  the  property 
may  be  sold  under  executions  of  a  younger  teste.  Garter  v. 
Sheriff  of  Halifax,  1  Hawks.,  is:;. 

11.  An  execution  binds  property  in  the  hands  of  the  defen- 
dant,  and  all  others  claiming  under  him,  from  the  teste.  Sla  raps 
v.  Irvine,  2  Hawks.,  232. 

12.  An  execution,  bearing  the  first  teste,  will  he  satisfied  before 
one  of  a younger  teste,  first  delivered  ami  levied  upon  property, 
where  the  property  is  not  sold,  before  the  execution  having  the 
first  teste  comes  to  the  sheriff's  hands.  Green  v.  Johnson,  2 
Hawks.,  309. 

13.  A_//.  fa.  binds  slaves  in  the  hands  of  the  defendant  from 
its  teste,  and  an  alias  fi.  fa.  has  relation,  as  to  its  lien,  to  thefesfe 
of  the  first/?,  fa.     Gilkey  v.  Dickerson,  2  Hawks.,  341. 

14.  If  a  fi.  fa.  lie  levied  on  slaves,  but  no  return  be  made,  the 
benefit  of  the  levy  is  lost,  but  the  lien  continues  as  much  as  if 
the  levy  had  not  been  made.     Ibid. 

15.  The  lien  created  by  an  execution  is  continued  by  an  alias 
regularly  issuing  thereon;  and  if  an  execution,  at  the  instance 
of  another  plaintiff,  issue  after  the  lien  of  the  first  has  com- 
menced, and,  before  execution  is  fully  done  under  it,  the  alias 
come  to  the  sheriff's  hands,  it  shall  have  the  preference.  Bras- 
fold  v.   Whitaker,  4  Hawks.,  309. 


EXECUTION.— VI.  551 

16.  A  levy,  made  and  returned,  is  waived  by  taking  out  an 
alias  fi.  fa.  A  vend,  expo.,  with  an  alias  fi.  fa.  clause,  is  the 
proper  writ  to  keep  up  the  lien  created  by  the  levy,  and  the 
relation  of  the  process  to  the  teste  of  the  original  fi.  fa.  Tarbo- 
rough  v.  State  Bank,  2  Dev.,  23. 

17.  An  alias  fi.  fa.,  although  founded  on  one  which  was  re- 
turned "too  late  to  hand,"  haw  a  lien  on  goods  from  the  teste  of 
the  first.     Ibid. 

18.  Where  a  justice  of  the  peace  finds  the  plea  ot'pl  ne  admin- 
istravit  in  favor  of  the  defendant,  and  issues  afi.  fa.,  which  is 
levied  on  lands  of  which  the  debtor  died  seized,  upon  the  return 
thereof  to  the  county  court,  and  an  award  of  a  vend,  expo,  on  a 
sci.  fa.  against  the  heir,  the  levy  of  the  constable  is  only  mesne 
I  roc  ss  in  the  suit  against  the  heir,  and  creates  no  lien  upon  the 
land.  But  where  the  fi.fa.  is  against  a  lifting  debtor,  the  subse- 
quent return  is  only  a  mode  of  placing  the  proceedings  upon 
record,  and  the  levy  binds  the  land  from  the  time  it  was  made. 
Irwin  v.  Sloan,  2  Dev.  349.  (A  justice  now  never  tries  the  plea 
of  pit  n  ■•  ftjj '  <•'  tr  wit,  but  proceeds  as  directed  by  Rev.  Code,  ch. 
46,  sec.  35.) 

19.  <  in  several  writs  of  sci.  fa.  against  an  heir,  the  creditor, 
who  first  obtain^  judgment  and  execution,  and  proceeds  thereon, 
is  entitled  to  priority.     Ibid. 

■>(_).   Wjhere  duel  of  the  parties  is  bonafide,  a  fi.  fa.  of  an 

older/  t  is  entitled  to  the  priority,  and  thos<%  of  equal  teste,  to 
an  equality,  in  dividing  the  proceeds  oi  sales  made  by  the  sheriff, 
without  regard  +o  the  time  of  their  delivery  to  the  sheriff,  pro- 
vided all  are  delivered  before  the  return  day,  and  before  the 
sale.  But  where  a  plaintiff  prevents  his  execution  from  being 
acted  on,  he  is  guilty  of  a  legal  fraud,  and  is  postponed  as  to 
creditors,  who  have  endeavored  to  enforce  their  judgments:  and 
if  a  plaintiff  instruct  the  sheriff  not  to  sell  under  his  execution, 
unless  -  ime  other  creditor  enforces  a  sale,  h  losi  s  his  priority. 
Palm  r  v.  Clark,  2  Dev.  354. 

21.  J'iit  tie  se  rules  apply  only  as  between  judgment  creditors^ 
for.  as  between  them  and  the  defendant,  all  executions  have  the 
preference.     Hid. 

2'J.  When  several  successive  writs  of  fi.  fa.  have  been  issued 
on  the  same  juagment,  and  have  hern  bona  li  h  acted  on  without 
producing  satisfaction,  the  last  of  them  relates  to  the  test,-  of  the 
first,  and  binds  the  property  of  the  defendant  from*  that  time. 
But  where  tic*  original,  or  any  intermediate  writ,  never  was  de- 
livered to  the  sheriff,  the  lien  is  not  carried  back  beyond  the  one 
on  which  the  sheriff  proceeded.      Ibid. 

23.  If  the  plaintiff  in  an  original  fi.  fa.  print  indulgence  to 
the  defendant,  and  afterwards  issues  an  alias,  this  indulgence 
does  not  affect  the  lien  of  the  first  writ,  as  to  the  defendant  or 
his  vendee.     Arriufioa  v.  Sledge,  2  Dev.  359. 


552  EXECUTION.— VI. 

24.  There  is  no  relation  against  the  State,  between  executions 
in  its  favor  and  that  of  a  citizen.  The  first  1ms  a  preference, 
unless  the  debtors  goods  have  been  actually  sold  under  the  exe- 
cution of  the  citizen,  before  that  of  the  State  is  delivered.  Hoke 
v.  Henderson,  3  Dev.,  12, 

25.  Where  a  purchaser  of  land,  under  an  execution  against  a 
fraudulent  vendor,  neglected  to  take  his  deed  from  the  sheriff- 
and  before  its  delivery  the  fraudulent  vendee  entered  into  a  re- 
cognizance to  the  State,  (7  was  held  that,  though  between  the 
State  and  a  citizen,  there  is  no  priority  obtained  by  the  latter 
from  the  relation  of  his  execution,  when  they  are  pursuing  tin.' 
estate  of  a  common  debtor,  yet,  as  the  land  was  primarily  liable 
to  the  creditor  of  the  vendor,  the  prerogative  of  the  Slate  did 
not  operate,  and  the  sheriff's  deed  related  to  the  sale.     Ibid. 

26.  Where  an  original  fi.  fa.  issued  to  one  county  and  an 
alias  issued  to  another,  a  sale  by  the  defendant  of  his  property 
situated  in  the  latter  canity,  made  while  the  first  writ  was  in 
the  hands  of  the  sheriff  of  the  other  county,  is  valid,  //unit/ 
v.  Jasper,  3  Dev.,  158. 

27.  In  England  lands  are  bound  by  the  judgment  upon  suing 
out  an  elegit;  and,  therefore,  all  the  lands  owned  by  the  defend- 
ant at  its  rendition  are  liable  for  its  satisfaction.  But  in  this 
State,  lands  are  bound  by  the  fi.  fa.  only  from  its  teste,  andsales 
after  that  time,  of  land  sifuated  where  the  writ  does  not  run, 
are  valid.     Ibid. 

28.  It  seems  that  an  elegit  will  not,  in  this  State,  divest  the  title 
of  a  purchaser  under  a  //.  fa.  issuing  upon  a  junior  judgment. 
Ricks  v.  Blount,  4  Dev.  12-s. 

29.  In  this  State,  the  first  execution,  finally  acted  on,  protects 
both  the  purchaser  under  it,  and  the  plaintiff  in  it.     Ibid. 

30.  In  this  State,  tin:  rules  of  the  common  law.  as  to  the  lien 
of  a  fi.  fa.  upon  chattels,  have  been  extended  to  land,  when 
sought  to  be  subjected  by  that  writ.  And  after  the  sale  of  land 
under  one  fi.  fa.,  the  lien  of  another  is  regarded  only  in  ques- 
tions as  to  the  application  of  the  money  raised  by  the  sheriff. 
Iu  all  cases  the  title  of  the  purchaser  is  protected.  And  he  is 
protected,  as  well  when  the  writ  is  against  the  real  assets,  in  the 
hands  of  the  heir,  as  where  the  defendant  in  it  is  the  original 
debtor.     Ibid. 

31.  When  several  executions,  issiiing  from  different  com  po- 
tent courts,  are  in  the  hands  of  different  officers,  then,  to  pre- 
vent conflicts,  if  the  officer  holding  the  junor  execution  seizes 
property  by  virtue  of  it,  the  property  so  seized  is  not  subject  to 
the  execution  in  the  hands  of  the  other  officer,  although  first, 
tested;  and,  consequently,  a  purchaser  under  the  junior  execu- 
tion is,  in  such  case,  protected  against  the  execution  of  a  prior 
teste.     Jones  v.  Judkins,  4  Dev.  and  Bat.,  454. 

32.  At  common  law,  the  goods  of  a  party,  against  whom  a  fi 


EXECUTION.— VI.  555 

fa.  issued,  were  bound  from  the  teste  of  the  writ,  so  as  to  pre- 
vent his  selling  or  assigning-  them.  But,  subject  to  this  restric- 
tion, the  property  of  the  goods  is  not  altered,  but  continues  in 
the  defendant  until  the  execution  is  executed.  If,  therefore,  the 
property  be  levied  on  and  sold  under  a  junior  execution,  the 
pur  :haser  gets  a  good  title,  and  the  party,  having  the  first  ex- 
ecution, cannot  seize  them  by  virtue  of  his  writ  first  tested;  but 
be  may  have  his  remedy  against  the  sheriff,  whose  duty  it  was 
cute  that  writ  first,  which  was  first  tested.     Ibid. 

I;;-;.  If  the  sheriff  have  only  levied  under  the  younger  execu- 
■  1 1 « L  before  Bale,  an  older  execution  in  point  of  teste  came 
to  his  hands,  he  may,  and  ought,  to  apply  the  property  to  the 
satisfaction  oi  the  execution  bearing  the  first  teste.     Ibid. 

'.'A.  A  sheriff  who,  after  seizing  goods,  leaves  them  en  the 
premises  of  the  debtor,  not  separated  from  his  other  goods,  and 
tor  the  use  of  the  debtor  or  his  family  as  before  the  seizure, 
■  prima  facie  loses  his  property  in  them,  upon  the  grounds 
of  presumptive  fraud  or  abandonment;  and  another  officer  may- 
seize  and  sell  them,  unless  the  delay  to  remove  them  be  but  for 
a  reasonable  time,  and  then  be  accounted  for  by  the  state  of  the 
property,  as.  for  example,  that  it  was  a  growing  crop,  or  an  ar- 
ticle in  the  course  of  being  manufactured,  or  the  like.  Roberts 
v.  Scales,  1  In  d.,  88. 

o5.  A  judgment  of  a  court,  rendered  on  a  day  of  the  term 
subsequent  to  the  day  on  which  a  conveyance  of  his  property 
has  been  made  by  the  defendant  in  the  action,  has  relation  back 
to  the  first  day  of  the  term,  and  an  execution  issuing  thereon, 
and  lested  of  the  same  term,  will  overreach  such  conveyance. 
ffltdey  v.  Smith,  2  [red.,  225. 

36.  Such  a  judgment,  though  voluntarily  confessed  by  a  de- 
fendant to  a  plaintiff,  who  had  knowledge  of  the  prior  convey- 
ance, is  not  on  that  account  fraudulent  as  against  him  who 
claims  under  the  conveyance.  On  the  contrary,  the  conveyance 
is  considered  in  law  fradulenf   as  against  the  judgment.     Ibid. 

;17.  Where  an  officer,  who  has  levied  an  execution  on  personal 
properl  v,  voluntarily  permits  the  defendant  in  the  execution  to 
regain  possession  of  the  property,  his  lien  is  so  far  gone,  that  a 
levy  nf  a  subsequent  execution  by  another  officer  on  the  property, 
soiu  pi  n  of  the  defendant,  shall  be  preferred.      Wilson  v. 

Hensley,  4  [red.,  66. 

3o.  An  execution,  under  which  an  officer  takes  actual  posses 
sion  of  personal  property  levied  on,  has  precedence  over  one 
previously  levied  on  the  same  property,  but  under  which  no 
actual  possession  has  been  taken  and  retained  by  the  officer 
levying  it.     Barham  v.  Masse^  5  Ired..  192. 

39.  An  officer,  who  levies  on  personal  property,  and  leaves  it 
in  possession  of  the  defendant  in  the  execution,  only  loses  his 


554  EXECUTION  —VI. 

lien  as  against  other  executions,  under  -which  the  property  is 
seized  and  taken  in  possession:  therefore,  where  A,  a  constable 
in  ( (range  county,  levied  on  personal  property,  and  left  it  in  pos- 
session of  the  defendant  in  the  execution,  and  B,  a  constable  in 
another  county,  with  the  assent  of  the  defendant,  but  without 
any  legal  process  in  Orange,  removed' the  property  to  his  own 
county,  and  there  sold  it  under  executions  issuing  in  that  county, 
it  was  held  that  A  was  entitled  to  recover  from  B,  in  an  action  of 
trover.     Mangum  v.  Hamlet,  8  Ired.,  44. 

40.  A  fi.  fa.  binds  property  from  its  teste,  and  this  lien  is  con- 
tinued, if  regular  alias  writs  of  fi.  fa.  are  issued.  Therefore, 
where  a  fi.  fa.  issued  against  one  who  was  a  joint  owner  of  slaves 
with  others,  and  afterwards,  upon  the  petition  of  all  the  joint 
owners,  the  slaves  were  directed  by  a  court  of  competent  juris- 
diction, to  1"'  sol  1  for  a  division,  and  under  that  order  were  sold, 
the  lien  of  the  sheriff,  actingunder  the  original  and  alias  fi.  fas., 
was  not  divested,  but  he  had  a  right  still  to  sell  the  undivided 
interest  of  the  defendant  in  his  executions.  Harding  v.  Spivey, 
8  Ired.,  63. 

41.  It  was  never  meant  by  the  act,  directing  the  mode  of  pro- 
ceeding for  the  partion  of  slaves,  to  interfere  with  the  just  rights 
of  persons,  nol  parties  to  the  proceeding  for  partition,  whether 
arising  upon  a  claim  of  property  by  adverse  title,  or  upon  the 
lien  of  a  creditor's  execution.  Ibid.  (See  Rev.  Code,  eh.  <S2. 
sec.  17.) 

42.  The  lien  of  a  fi.  fa.,  upon  the  equitable  interest  of  a  debtor; 
coinineiie  s  only  from  the  time  of  its  issuing,  and  not  from  its 
tcsti'.     Morrisey  v.  Hill,  9  Ired.,  (ill. 

43.  An  execution  does  not  bind  trust  estates  from  its  teste,  but 
from  the- time  it  is  "sued  out."  (ViUiamson  v.  James,  10  Ired., 
162. 

44.  An  execution,  which  comes  to  the  hands  of  the'  sheriff,  after 
an  assigment  of  partnership  effects  by  one  of  the  firm  in  satisfac- 
tion of  partnership  debts,  although  tested  before  such  assignment, 
does  not,  by  relation  back  to  the  teste,  overreach  it ;  and  conse- 
quently the  sheriff  may,  in  such  ease,  lawfully  return  nulla  bona. 

Watt  v.  Johnson,  4  Jones,  190. 

45.  An  attachment  creditor  acquires  a  lieu  from  the  date  of  his 
levy,  and  it  he  subsequently  gets  a  judgment  and  execution,  his 
execution  will  have  priority  over  an  execution   prior  in  teste  to 

"his  own,  but  issuiug  upon  a  judgment  rendered  after  the  levy  of 
his  attachment.     McMiUan  v.  Parsons,  7  Jones,  1(>;>. 

See  (Judgment— Of  the  effect  of  a  judgment,  9-10-11-15-17.) 
(Landlord  and  Tenant,  5.)  (Sheriff — Authority  of  sBeriffs  and 
remedy  for  them,  11.)  (Insolvent  Debtors — Of  the  priority  of 
the  claim  of  the  United  States  and  the  State.) 


EXECUTION— VII.  555 

VII.       OF  VOID  AND  IRREGULAR  EXECUTIONS,  AND  PROCEEDINGS  TO   SET  ASIDE 
EXECUTIONS 

1.  Where,  after  an  issne  between  the  administrator  and  heir 
as  tu  assets,  which  was  found  in  favor  of  the  former,  an  execu- 
tion was  issued  commanding  the  sheriff  to  levy  on  and  sell  the 
lands  in  the  hands  of  the  administrator,  and  the  sheriff  levied  on 
and  sold  the  lands  in  the  possession  of  the  heir,  it  was  In)'1  that 
there  was  no  judgment  to  warrant  the  execution,  and  the  sale 
was  therefore,  void  and  no  title  passed  to  the  purchaser.  Dud- 
ley v.  JStrange,  2  Hay.,  12,  (160.) 

2.  If  an  execution  issue,  having  the  costs  endorsed  thereon  in 
abbreviate  1  words,  it  is  illegal  only  as  to  the  costs  endorsed;  and 
the  judgment  must  be  levied.  Tagert  v.  Hill,  2  Hay.,  81,  (249.) 
S.  P..  Wingate  v.  Galloway,  3  Hawks,  6. 

3.  An  execution,  issued  more  than  a  year  and  a  day  after  the 
judgment,  is  irregular,  though  there  were  an  entry  that  it  should 
be  stayed  till  further  order;  but  if  there  had   been  a 

t!i>  for  a  time,  certain,  execution  might  have  been  taken  oat  after 
that  time  without  a  soi.  fa.     Hester  v.  Burton,  2  liny.,  136,  (305.) 

4.  A  fi.  fa.  issued  after  the  death  of  the  plaintiff,  and  when 
he  had  no  representative  in  court,  must  be  se  !  having 
issued  erroneously.      Wingatev.  Gibson,  1  Murph.,  492. 

5.  An  execution,  issuing  after  a  year  and  a  day.  is  only  voida- 
ble at  th-  instance  of  the  party  against  whom  it  issues.  Oxky 
v.  Mide,  3  Murph.,  250. 

li.  An  execution,  which  issues  irpon  a  judgment  more  than  a 
year  and  a  day  old,  is  erroneous  only.  Weaver  v.  Gryer,  1  Dev.. 
337. 

7.  A  fi.  fa.  upon  a  dormant  judgment  is  not  void,  and  the 
sheriff  is  bound  to  obey  it.     Dawson  v.  Shepherd,  4  Dev.,  497. 

8.  Where  the  execution,  under  which  the  plaintiff  claimed. 
commanded  the  sheriff  to  levy  a  certain  sum,  which  the  State 
Bad  recovered  of  the  defendant,  for  costs  and  charges,  ami  on  the 
execution  was  endorsed  a  bill  of  costs  containing  officers'  fees, 
and  witnesses'  dues,  but  without  specifying  whether  they  were 
costs  expended  by  the  Mate,  or  were  the  costs  of  the  defendant, 
ami  the  only  record  of  a  judgment,  produced  in  support  of  the 
execution,  merely  showed  that  the  defendant  hail  been  indict- 
ed and  acquitted,  it  tens  held  that  there  ought  to  have  been  a 
special  judgment  in  favor  of  the  officers  of  the  court,  and  the  de-v 
fendant's  witnesses,  and  an  execution  issued  thereon  and  con- 
formable thereto,  and  that  the  court  could  not  presume  from  the 
record  produced  that  there  had  been  such  a  special  judgment, 
and  then  permit  the  plaintiff  by  parol  evidence  to  trim  and  shape 
the  execution  offered,  so  as  to  fit  such  presumed  judgment. 
King  v.  Feathersto  >,  4  Dev.  and  Bat.,  126. 

9.  When  a  defendant  is  acquitted  on  a  criminal  charge,  he  is 


556  EXECUTION.— VII. 

entitled  to  the  common  law  judgment,  that  he  gx>  without  day 
as  to  the  indictment,  but  at  the  foot  of  such  judgment,  there 
should  be  a  judgment,  under  the  statute,  againstthe  defendant,  in 

favor  of  the  officers  and  the  defendant's  witnesses  for  his  costs 
due  to  them,  to  be  taxed  by  the  clerk,  upon  which  he  should  issue 
execution,  not  for  the  State,  but  in  favor  of  the  said  officers  and 
witnesses  against  the  defendant.     Ibid.      (See  Rev.  Code,  ch. 

102,  see.   24.) 

10.  Where  an  execution  on  a  judgment  is  returned  satisfied, 
the  judgment  is  extinguished;  and  another  execution  cannot  be 
issued,  as,  for  instance,  for  attendance  dues  for  a  witness  omit- 
ted in  the  first  execution,  until  the  return  on  the  first  execution 
is  set  aside  or  corn  ei,  d,  or  an  order  of  the  court,  in  the  nature  of 
a  further  judgment,  is  rendered.     Poorx.  Deaver,  1  [red,  391. 

11.  A  vend.  expo,  to  sell  lands,  tested  after  the  defendantih 
the  execution  had  died,  without  any  sci.  fa.  against  the  heirs,  is 
null  and  void.     JSanvuel  v.  Zachery,  4  Ired.,  377. 

12.  An  execution,  in  the  name  of  "William  Barnes,  guardian," 
is  not  supported  by  a  judgment  in  the  name  of  "  Charity,  Pene- 
lope and  Sarah  Newsom  by  their  guardian,  William  Barnes," and 
is  therefore  void.     Neiosom  v.  Newsom,  4  Ired.,  381. 

13.  A  suit  and  judgment,  in  which  the  same  person  is  both 
plaintiff  and  defendant,  or  one  of  the  plaintiffs,  and  one  of  the 
defendants,  is  an  absurdity,  and  cannot  have  any  legal  efficiency. 
Thus,  where  a  father  died,  seized  of  a  tract  of  land,  and  leaving 
eleven  children  his  heirs  at  law:  and  three  of  these  children 
recovered  a  judgment  against  the  administrator  of  their  father, 
the  plea  of  Jutly  administered  having  been  found  in  his  favor, 
and  they  then  issued  a  sci.  fa.  against  themselves,  and  the  other 
heirs  to  subject  the  laud,  and  upon  this  sci-  fa.  a  judgment  was 
entered  and  an  execution  issued,  under  which  the  land  was  sold, 
it,  was  held  that  it  was  right  for  the  court,  upon  motion,  to  vacate 
the  judgment,  and  setaside  the  execution,  which,  of  course,  ni:ide 
the  sale  of  no  effect;  but  the  court  had  no  right  to  require  tne 
purchaser,  who  was  the  assignee  of  the  judgment,  to  pay,  to  the 
defendants  in  the  execution,  the  amount  for  winch  the  land  sold; 
the  remedy  of  the  creditor's  heirs,  in  a  case  like  this,  being  in 
equity.     Ibid. 

14.  When  an  execution,  issued  by  a  justice,  is  returned  to  the 
county  court  levied  on  land,  no  execution  against  the  goods  and 
chattels  of  the  defendant  can  issue  from  that  court,  unless  a  judg- 
ment has,  on  the  application  of  the  plaintiff,  I  ieen  there  previously 
rendered  for  the  amount  of  the  recovery  before  the  justice;  and 
if  such  execution  be  issued,  it  is  void.  Hamilton  v.  Henry,  5 
Ired,  218. 

15.  Where,  after  a  judgment,  a  memorandum  was  made  on 
the  docket  by  the  parties,  that  execution  should  not  issue  before 
a  certain  day,  as  this  forms  no  part  of  the  judgment,  an  execu- 


EXECUTION.— VH.  557 

tion  issued  before  the  day  can  only  be  complained  of  by  the 
parties;  but  as  to  all  other  persons,  the  execution  is  not  even 
voidable.     Cody  v.  Quinn,  6  lred.,  191. 

10.  An  execution  upon  a  dormant  judgment  is  not  void,  but 
only  irregular;  and  that  is  an  objection,  which  can  only  be  taken 
by  the  defendant  in  the  execution,  and  no1  by  the  officer  to  whoiii 
it  is  directed,  who  is  bound  to  execute  it.  State  v.  Morgan,  7 
lred.,  387. 

17.  A  judgment  confesoed  by  a  third  person,  to  satisfy  a  fine 
and  costs  imposed  on  one  convicted  of  an  offence,  is  regular  and 
proper.  But  an  execution  upon  such  judgment  can  only  issue 
agaihsl  the  person  who  confessed  it.  and  not  against  him  jointly 
with  the  person  against  whom  the  fine  and  costs  were  awarded; 
and  an  execution  issuing  against  them  jointly  is  void,  and  a  sale 
under  if  conveys  no  title  to  the  purchaser.  Fleming  v.  Dayton, 
8  lred..  453. 

18.  Where  a  vend.  expo,  has  issued,  and  the  land  mentioned 
in  it  has  In  en  si  Id,  another  vend,  i  ,  o.  cannot  issue,  but  it  it  do, 
it  is  invalid,  and  the  purchaser  under  it  acquires  no  title.  The 
proper  execution,  when  a  balance  of  the  judgment  is  unpaid,  is 
a.fi./a.     Smith  v.  Fore,  1<»  lred..  .",7. 

19.  A  court  martial  is  a.  court  of  special  and  limited  jurisdic- 
tion. It  must  or  rized  agreeably  to  law.  and  this  must  be 
shown  distinctly  by  every  one,  who  seeks  to  enforce  its  sentence, 
or  justify  action  under  its  precepts;  therefore,  where  a  company 
court  martial,  as  is  required  by  our  law.  must  he  composed  of  at 
least  two  commissioned  officers,  and  it  did  not  appear,  in  this 
case,  that  more  than  one  commissioned  officer  sat  in  the  court. 
au  execution  issued  by  it  washeldto  be  void,  and  not  to  afford 
anv  justification  to  an  officer  acting  under  it.  Bdlv.  Tody,  11 
I  ml'.,  605. 

20.  An  execution,  to  which  a  sheriff  is  a  party,  either  plaintiff 
or  defendant,  directed  to  such  sheriff,  is  null  and  void;  and  the 
sheriff  is  not  bound  to  make  any  return  thereon,  and  conse- 
quently cannot  be  amerced  for  neglecting  or  refusing  to  do  so. 
Bowen  v.  Jones,  b">  lred.,  25. 

21.  Where  land  has  been  levied  on  and  sold  under  a  justice's 
execution,  and  has  brought  less  than  the  debt  in  the  execution, 
it  cannot  be  again  levied  on  and  sold  under  a  judgment  of  the 
court,  entered  for  the  remainder  of  the  debt,  under  the  act,  Rev. 
Stat.  oh.  4.">.  sec.  9,  although  the  former  owner,  the  debtor,  is  re- 
siding on  the  land,  and  the  suit  is  brought  against  him,  he  re- 
maining there,  as  the  tenant  of  the  vendee  of  the  purchaser 
under  the  first  execution.  Smith  v.  Fore,  1  Jones,  488.  (See  Rev. 
Code,  eh.  45,  sec.  13.) 

22.  It  is  erroneous  to  set  aside  an  execution  issued  on  a  dor- 
mant judgment,  where  property  has  been  purchased  under  it. 
Murphy  v.  Wood,  2  Jones,  63. 


•"558  EXECUTION.— VII.-VIII. 

23.  A  plaintiff  cannot  take  out  two  writs  of  fi  fa.  on  the  same 
.judgment,  at  the  same  time,  without  the  special  leave  of  the 

court.     Adamsv.  Smallwood,  8  Jones,  258. 

24.  Where  two  writs  of  fi.  fa.  had  been  issued  at  the  same 
time,  to  two  different  counties,  on  the  same  judgment,  and  one  of 
them  had  been  satisfied  before  the  return  term,  it  was  held  that 
the  court  might,  at  the  instance  of  the  plaintiff,  set  aside  the 
second  execution  at  the  return  term,  and  vacate  a  sale  made 
under  it.     Ibid. 

Sec  (  Executors  and  Administrators — Of  their  liability  to  cred- 
itors, &c,  75.) 

VIII.       PURCHASER  AT  AN  EXECUTIVE  SALE. 

1.  He,  who  claims  as  a  purchaser  at  an  execution  sale,  is  bound 
to  produce  the  judgment  as  well  as  the  execution.  Hargetv. 
Blackshear,  'Fay.',  107,  (62.)  S.  P..  Anonymous,  2  liny.,  .so,  (249.) 
Bryan  v.  Broton,  2Murph.,  343.  Whitehurstv.  Banks,  Ibid,  346. 
Dobsony  Murphy,  1  Dev.  and  Bat,  586.  (Altered  by  statute, 
See  Rev.  Code,  eh.  44,  sec.  13.  Rutherford  v.  Rabum,  10  [red., 
141.) 

2.  A  purchaser  at  sheriff's  sale  is  not  bound  to  look  further 
than  to  see,  that  he  is  an  officer  who  sells,  and  that  lie  is  empow- 
ered to  do  so  by  execution,  lie  is  not  affected  l>v  the  irregular 
conduct  of  the  sheriff  Blount  v.  Mitchell,  Tay.,  131,  (80.)  S. 
C,  2  Hay.,  65,  (233.)  S.  P.,  Brodie  v.  Seagraves,  Ilnd,  144.  S. 
C,  2  Hay,  70,  (237.)     Jonesv.  Fulgham,  2  Murph.,  364. 

3.  When  one  purchases  at  an  execution  sale  a  quantity  of 
light  wood,  set  as  a  tar  kiln,  or  any  other  bulky  article,  too  cum- 
brous for  immediate  removal,  as  corn,  fodder,  hay,  &c,  he  has  a 
right,  unless  forbidden  by  the  owner  of  the  land,  to  go  shortly 
alter  the  sale  and  remove  it.  But  if  he  b<  forbidden  by  the  own- 
er of  the  land,  he  cannot  lawfully  go  to  take  away  the  article, 
though  hemav  bring  trover  for  it.  Nicholsv.  Newsom,  2-Muiph., 
302,  S  C,  1  Car.  L.  R.,  227,  (17.) 

4.  Plaintiff  claimed  the  slave  in  question  mid  r  a  fraudulent 
deed  from  the  ownet  who  had  lefl  the  State.  The  defendant, 
being  a  creditor  of  the  grantor,  sued  ou1  an  attachment,  under 
which  the  slave  was  levied  upon  and  afterwards  sold,  when  this 
defendant  became  the  purchaser;  and  his  title  was  held  to  bo 
good,  because  he  was  both  a  creditor  and  purchaser.  Spence  v. 
Yellowly,  N.  C.  Term,  R.  114.  (551.) 

5.  Fraud  and  combination  between  a  sheriff  and  purchaser 
will  lender  the  sale  void,  whether  regularly  or  irregularly  made. 
Jones  v.  Fulqham,  2  Murph..  364. 

(!.  If  an  officer  sell  under  an  execution  authorizing  him  to 
sell,  although,  in  his  deed  to  the  purchaser,  he  makes  an  erro- 


EXECUTION.— VIII.  559 

"neous  recital  of  the  power  under  which   he  sells,  yet  his  deed  is 
good  and  passes  the  title.     Hatton  v.  Deto,  \>  Murph.,  260. 

7.  Whatever  irregularity  there  may  be  in  a  judgment,  if  it  be 
the  act  of  a  court  of  competent  jurisdiction,  unreversed  and  in 
force  when  a  sale  is  made  by  execution  under  it,  the  purchaser 
at  such  sale  is  safe,  even  though  the  judgment  be  subsequently 
rfrversi  d  or  se1  aside.  The  same  principal  applies  1"  an  error  in 
the  execution,  th i  regularity  of  which  cannot  be  questioned  in 
an  action  against  a  purchaser  at  a  sheriff's  sale.  Oxley  v.  Male, 
3  Murph.,  250.     S.  P.,  Smith  v  Kelley,  Ibid,  507. 

8.  The  return  of  a  sheriff  on  an  execution,  that  he  has  sold  the 
land  to  A,  will  not  prevent  the  title  of  B,  to  whom  he  has  execu- 
ted the  deed,  from  being  good.     Smith  v.  Kelley,  3  Murph.,  507. 

9.  The  law  pern, its  one  person  to  bid  off  property  at  a  sheriffs 
sale,  and  relinquish  the  I  id  to  another,  to  whom  the  deed  may 
be  executed.     Ibid. 

10.  When  a  return  on  an  exe  :ution  against  lands  is  signed  by 
tin-  deputy  sheriff,  but  the  deed  to  the  purchaser  is  executed  by 
the  sheriff,  it  is  a  ratification  of  the  act  ofthe  deputy;  and  the  ti- 
tle cannot  be  impaired  by  the  return  on  the  execution.  In/tier 
v.  St  me,  1  Hawks.  329. 

11.  Where,  under  an  execution,  lands  were  sold  by  a  sheriff 
with  the  debtor's  consent,  without  levy  or  advertisement,  and 
bid  ■  (Fby  A,  who,,  by  \r.i\n\,  assigned  his  bid  to  B,  to  whom  the 
sheriff  executed  a  deed;  it  was  held  that  the  act  ofthe  sheriff  was 
official  and  passed  the  title  to  B.  ger  v.  Kennedy,  1 
Dev.,  1 

12.  A  purchaser  at  an  execution  s  ign  his  I  id.  and  a 

y  the   sheriff  to   the  i     I      th      title   in   him. 
Bloi  ntv.  Dncis,    2  Dev.,  19. 

13.  An  executor  can  ;  b  tatoi  at  an 
execution  sale. 

14.  Under  the  act  of  1807,  where  the  land  of  a  testator  was 
sold  under  a  judgment  -                 ich,  and  the 

:er  was  evicted  by  the  heir,  u  thai  h    could  not 

i  base  money  from   the  executi  r,  i    ainsf  whom 

Sandi  rs  v.  -In  v..  193. 

(S'  •  lev.  <  !ode,  eh.  45,  i  ec.  -1.) 

15.  A  sheriff 's  deed  vests  the  tith  ofthe  land  in  the  pur- 
chaser from  the  time  of  the  sale.  David  io  3  Dev.,  3, 
s.  P.,  Picket  v.  Picket,  Tbid.,  6                       d          Hid,  12. 

16.  Ii  a  sheriff  have  several  writs  againsl  tin  same  defendant, 
and  do  not  sell  under  one  of  them,  that  writ  cannot  aid  the  title 
of  a  purchaser  under  the  other*  although  =1  iej  arising 
from  the  sale  be  applied  to  its  satisfaction.  Seaw*  11  v.  Cape  Fear 
Bank,  3  Dev.,  279. 

17.  A  purchaser  at  a  sheriff's  sale,  under  execution,  is  not  re- 


560  EXECUTION.— VIII. 

quired  to  see  that  the  aheriffhas  complied  with  his  duty,  in  mak- 
ing it.     Mordecai  v.  Speight,  3  Dev.,  428. 

18.  Generally,  the  execution  of  powers,  and  the  performance 
of  official  duties,  must  literally  conform  to  the  terms  prescribed. 
But  the  observance  of  form  by  an  officer  is  not  required  to  give 
effect  to  his  acts,  when  it  will  defeat  the  primary  object  of  the 
Legislature;  as,  in  execution  sales  the  object  being  to  enhance 
the  price,  for  the  encouragement  of  bidders,  they  are  not  affec- 
ted by  the  prior  acts  of  the  sheriff;  unless  the  irregularity  be 
such  as  must  be  known  to,  or  is  procured  by  the  purchaser,  as 
if  he  buy  at  private  sale.     Avery  v.  Rose,  1  Dev.,  549. 

19.  An  allegation  of  fraud,  againsl  a  purchaser  at  an  execu- 
tion sale,  will  not  be  heard  from  a  stranger  to  the  execution. 
Harry  v.  Graham,  1  Dev.  and  Bat.,  76. 

20.  The  question  of  fraud,  in  preventing  competition  at  an 
execution  sale,  cannot  arise  between  the  alleged  fraudulent  pur- 
chaser at  such  sale,  and  a  claimant  under  a  prior  voluntary  con- 
veyance from  the  debtor.     Jo, us  x.    Young,  I  Dev.  and  Bat.,  352. 

21.  If  the  defendant  in  an  execution  places  money  in  the 
hands  of  another  person,  for  the  purpose  of  purchasing  his  own 
property,  at  a  sale  under  the  execution,  with  intent  to  defraud 
ins  creditors,  and  that  person  buys  it,  and  takes  a  deed  from  the 
sheriff,  tin,'  defendant  is  still  the  owner  of  it,  and  another  of  his 
judgment  creditors  may.  at  law,  subject  it  to  the  satisfaction  of  his 
debts,  although  the  fust  execution  was  for  a  bona  fide  debt,  and 
the  sheritf.  who  sold  under  it,  was  not  a  party  to  the  fraudulent 
contrivance  of  the  debtor.  Dobson  v.  Erwin,  1  Dev.  and  Bat., 
569. 

22.  A  sheriff's  deed,  fairly  executed  at  any  time  after  a  sale 
under  execution,  has  relation  to  the  sale,  and  operates  to  pass 
title  from  that  time.  And  if  every  thine,-  else  be  regular  and 
fair,  the  law  will  raise  no  presumption  of  fraud  against  the  deed, 
merely  because  it  may  lie  antedated  to  the  time  of  the  sale. 
JDobson  v.  Murphey,  1  Dev.  and  Bat.,  586. 

23.  If  a  sheriff's  deed  do  not  evidence  an  actual  sale  under  an 
execution,  it  cannot  be  connected  with  the  execution.  But  if 
there  were  an  execution,  giving  the  sheriff  power  to  sell,  and  if, 
under  that  execution,  a,  fair  sale  be  made  by  authority  of  the 
sheritf,  and  the  purpose  of  the  deed  is  to  authenticate  that  trans- 
action, then  it  operates  from  the  sale,  either  as  title  or  color  of 
title,  as  the  case  may  lie.     Ibid. 

24.  One,  who  bids  oil  land  at  an  execution  sale,  may  relinquish 
his  bid  to  another,  either  in  writing  or  by  parol,  and  the  sheriff 's 
deed  to  the  latter  will  be  valid.  Festerrnan  v.  P.oe,  2  Dev.  and 
Bat.,  103. 

25.  A  sheriff's  deed  relates  to  the  time  of  the  sale,  and  operates 
from  that  time  against  any  subsequent  transfer,  whether  made 


EXECUTION.— VIII.  561 

by  the  party,  or  by  the  sheriff  under  an  execution  against  the 
party.      Ibid. 

26.  A  bona  fide  purchaser  of  land  at  an  execution  sale,  does  not 
extinguish  his  title  at  law,  by  consenting  that  the  same  may  be 
levied  upon  and  sold  under  another  execution,  although  it  might 
be  a  fraud  upon  the  person  in  whose  favor  he  gave  such  consent, 
which  would  sustain  a  personal  action  at  law,  or  be  the  ground 
of  relief  in  equity.     Ibid. 

27.  It  seems  that  a  purchaser  under  execution,  who  advances 
in  part  his  own  money,  and  in  part  that  of  the  defendant  in  the 
execution,  may  acquire  a  sufficient  title  to  stand  asa  security  for 
his  own  money  advanced,  unless  he  intended  to  deceive  the 
creditors,  by  claiming  the  purchase  as  an   absolute  one.     Ibid. 

28.  Upon  an  execution  against  A  and  15,  if  the  sheriff  levy 
upon  and  sell  a  certain  slave,  who  was  in  the  possession  of  A,  as 
the  absolute  property  of  A,  and.  in  the  levy  and  bill  of  sale,  de- 
scribes the  -lave  as  the  property  of  A,  the  interest  of  B  in  such 
slave  will  not  pass  by  such  sale,  though,  in  fact,  A  had  only  a 
limited  interest  in  the  slave,  and  B  was  entitled  to  the  absolute 
property  in  remainder.     Knight  v.  Leake,  2  Dev.  and  Bat.,  133. 

29.  The  deed  of  a  sheriff  professes  to  transfer  property,  in  exe- 
cution of  an  authority  confided  to  him  by  law,  and  is  not  to  be 
construed  with  the  same  favor  to  the  purchaser,  as  the  deed  of 
an  in>li\  i  :  ial,  disposing  of  things  over  which  he  claims  uncon- 
trolled dominion.  Nothing  can  pass  by  the  sheriff's  deed,  but 
that  which  be  has  levied  upon,  and  which  was  known  at  the 
time  of  the  sale  as  the  subject  matter  thereof.     Ibid. 

.'in.  The  purchaser,  at  an  execution  sale,  buys  the  interest  ot 
the  defendant  in  the  execution,  and  cannot  object,.when  the  price 
is  demanded,  that  the  goods  belonged  to  himself,  or  to  a  third 
person.     Islay  v.  Stewart,  4  Dev.  ami  bat..  160. 

31.  If  a  sheriff  sell  land  under  an  execution  authorizing  him 
to  sell,  his  deed  is  good  and  passes  the  title,  although  in  his 
deed  to  the  purchaser  he  makes  an  erroneous  recital  of  the  power 
under  which  he  sells.  And  that  be'  sold  under  a  particular  ex- 
ecution must  be  presumed,  until  the  contrary  be  shown,  if  he 
had  that  execution  in  bis  bands  at  the  time,  and  sold  the  lands 
therebv  directed  to  be  sold.  Huggina  v.  Ketchum,  4  Dev.  and 
Bat,,  44. 

'.VI.  A  description  in  a  sheriff's  deed  of  "all  the  right,  title 
and  estate,  which  the  said  .1.  \\ ..  (the  defendant)  has  in  the 
county  of  Onslow,  on  Qu  d's  cr  el;,  being  all  the  land  which 
the  said  J.  W.  owned  on  said  creek,  "  though  far  from  being  so 
particular  as  could  be  wished  in  a  shei  iff's  deed,  is  not,  it  seems. 
bo  indefinite  as  to  make  the  deed  void  on  that  account.     Ibid. 

33.  If  a  party  claimed  under  a  sheriff's  sale,  made  by  virtue 
of  several  distinct  judgments  and  executions,  and  the  judge  in- 
structed the  jurv  that  if  the  executions  were  iu  the  hands  of 
36 


562  EXECUTION.—  VIII. 

the  sheriff  at  the  time  of  the  sale,  he  had  authority  to  sell,  and 
the  jury  thereupon  found  a  general  verdict  for  the  plaintiff,  and 
it  afterwards  appear  that  only  one  of  the  executions  was  suffi- 
cient to  authorize  the  sale,  but  whether  that  authority  extended 
to  all  the  lands  described  in  the  sheriff's  deed  and  claimed  by 
the  party,  or  to  a  part  of  them  only,  or  whether  it  extended  to 
them  at  all,  is  not  shown,  a  new  trial  must  be  granted.     Ibid. 

34.  Though  a  judgment  be  erroneous,  or  obtained  irregularly 
and  against  the  course  of  the  court,  yet,  while  it  remains  unre- 
versed, it  warrants  an  execution  conforming  thereto,  and  up- 
holds the  title  of  a  purchaser  at  execution  sale.  But  if  a  judg-* 
inent  be  rendered  by  a  court  having  no  jurisdiction  of  the  sub- 
ject matter,  or  against  a  person  who  has  not  had  notice  to 
defend  his  right,  or  if  it  order  what  the  court  has  not  the  pow- 
er to  order,  it  is  null  and  void,  and  an  execution  issuing 
thereon  will  not  protect  a  purchaser.  Jennings  v.  Stafford,  1 
Ired,  404. 

35.  Where  a  judgment  is  rendered  upon  a  former  judgment, 
and  execution  issued  thereon,  it  is  not  necessary  for  a  pur- 
chaser, at  a  sale  under  this  execution,  to  produce  the  first  judg- 
ment in  support  of  his  title.     Ibid. 

36.  Where  a  sheriff,  or  other  officer,  sells  under  a  valid  execu- 
tion, it  is  no  objection  to  the  title  of  the  purchaser,  that,  in  his 
deed  of  conveyance,  he   misrecites  his   execution.     Cherry  v. 

Wbolard,  1  Ired.,  438. 

37.  A  purchaser  at  an  execution  sal'  acquires  no  other  or  fur- 
ther title,  than  the  defendant  in  the  execution  had,  at  the  time  of 
the  sale.     Fh/nuv.  Williams,  1  Ired.,  509. 

38.  A  fi.  fa.  was  issued  returnable  to  January  term,  1821,  of 
a  county  court,  and  was  returned  to  that  term.  The  same  paper 
was  issued  by  the  clerk  endorsed  "alias  to  March  term,  1821," 
"alias  to  July  term,  1821,"  ''alias  to  October  term,  1821,"  with 
his  official  signature,  it  was  Jidd  that  a  sale  by  the  sheriff  under 
the  paper,  between  the  July  and  October  terms,  was  a  nullity, 
and  the  purchaser  acquired  no  title.     Love  v.  Gates,  -    Ired.,  14. 

39.  The  purchaser,  at  an  execution  sale,  must  show  a  judg- 
ment, and  an  execution  corresponding  thereto;  andan  execution;, 
at  the  instance  of  B,  is  not  warranted  by  a  judgment  in  favor  of 
A.  Bhnchard  v.  Blanchard,  3  Ired.,  105.  (Altered.  .See  Rev. 
Code,  ch.  44,  sec.  b">. ) 

40.  A  judgment  of  the  county  court,  upon  a  justice's  execution 
returned  levied  on  land,  under  which  judgment  there  are  an  ex- 
ecution and  sale  of  the  land,  precludes  all  collateral  enquiry  in- 
to the  regularity  of  the  previous  proceedings.  Therefore,  a  pur- 
chaser, under  such  judgment  and  execution,  will  acquire  a  valid 
title  to  the  land,  although  the  levy  of  the  justice's  execution  may 
have  been  by  one  not  legally  authorized  to  act  as  an  officer.  Burke 
v,  Elliott,  4  Ired.,  355. 


EXECUTION.— VIII.  563 

41.  Whatever  relation  to  the  time  of  the  sale  a  conveyance 
From  the  sheriff  may  have,  for  some  purposes,  it  cannot  be  used 
to  prove  title,  in  an  action  brought  before  the  deed  was  made. 
Dan's  v.  Evans,  5  Ired.,  525. 

42.  A  purchaser,  at  a  sheriffs  sale,  of  an  equity  of  redemption, 
may  recover  in  an  action  of  ejectment  against  the  mortgagor 
who  was  in  possession.     Ibid. 

43.  The  mortgagee,  who  is  subsequently  permitted  to  come  in 
and  defend  the  action,  can  make  no  defence,  which  the  original 
defendant  could  not  make,  and  is,  therefore,  like  him,  estopped 
from  denying  the  plaintiff's  right  to  recover.     Ibid. 

44.  The  act  of  1812  makes  the  equity  of  redemption,  when  sold 
under  execution,  a  legal  interest  to  the  extent,  at  least,  of  en- 
forcing it  by  a  recovery  fri  >m  the-  mi  irtgagor  himself.  I  bid.  (See 
Rev.  Code,  eh.  45,  sec.  5.) 

4.").  Where  a  judgment  is  for  the  penalty  of  a  bond,  to  be  dis- 
charged on  the  payment  of  certain  assessed  damages,  ami  the 
execution,  issuing  thereon,  recites  the  judgment  as  for  the  dam- 
age only,  it  is  a  fatal  variance,  and  any  sale  under  the  execu- 
tion is  void.  Walker  v.  Marshall,  7  Ired.,  1.  (Altered.  See 
Rev.  Code,  ch.  44,  sec.  13.) 

4(1.  Where,  in  the  county  court,  the  suit  was  against  three, 
and  on  an  appeal  to  the  superior  court,  the  judgment  was  on- 
ly against  one.  without  its  appearing  on  the  record  what  had 
been  done  with  the  others;  it  urns  heldth&t,  although  the  judg- 
ment in  the  superior  court  might  have  been  erroneous  or  irregu- 
lar, yet  it  was  good  until  reversed,  and  that  a  purchaser  acquired 
a  good  title  under  an  execution  issuing  on  it.     Carter  v.  S 

7  Ired..  14. 

47.  A  good  execution  in  the  sheriff's  hands  sustains  a  sale  under 
it.  though  wrongly  recited,  or  not  recited  in  the  sheriff's  deed. 
Ibid. 

48.  A  purchaser  of  land  at  a  sheriff's  sale,  under  execution,  is 
only  bound  to  show  a  judgment,  execution  and  sheriff's  deed. 
He  is  not  bound  to  show  a  levy  by  the  sheriff  His  title  is  com- 
plete as  against  the  defendant  in  the  execution.  M$Entire  v. 
Durham,  7  Ired.,  151. 

49.  In  order  to  support  the  title  of  a  purchaser  at  an  execution 
sale,  he  must  show  a  judgment,  execution,  sale  and  conveyance 
to  him  by  the  officer,  by  whom  the  sale  purports  to  have  been 
made;  and  the  deed  of  the  sheriff  reciting  a  judgment,  execu- 
tion ami  sale,  is  not  evidence  of  those  facts.     Owen  v.  'Barksdale, 

8  Ired.,  81. 

50.  Where  the  sheriff's  deed  is  an  ancient  one.  and  possession 
has  been  held  under  it,  a  presumption  of  a  sale  may  arise  from 
the  contents  of  the  deed.     Ibid. 

51.  Where  a  judgment  and  execution  from  a  justice  were  for 
a  certain  sum  and  costs,  and,  for  want  of  goods  and  chattels,  the 


564  EXECUTION.— VIII. 

execution  was  levied  on  lands,  and  returned,  as  by  law  directed, 
to  the  county  court,  and  an  order  for  a  vend.  expo,  to  issue,  &c, 
and  the  vend.  expo,  directed  the  sheriff  to  levy  and  sell,  for  the 
amount  returned  by  the  justice,  and  also  for  interest  on  the  jus- 
tice's judgment,  it  was  hill  that  the  execution  did  nut  correspond 
with  the  judgment,  and  was  not,  therefore;  sufficient  to  sustain 
the  title  of  the  purchaser  at  the  execution  sale.  Collais  v.  Me- 
Leod,  8  Ired.,  221.     (Altered,  see  Rev.  Code,  ch.  4!.  sec.  13.) 

52.  Where  a  judgment  is  recovered  by  a.  sheriff,  and  the  exe- 
cution thereon  is  issued  to  him,  any  sale  made  by  him,  under  such 
execution,  is  absolutely  void,  and  vests  no  title  in  the  purchaser. 
Ibid. 

53.  Although  land  alone  is  mentioned  in  the  act  of  1848,  ch. 
53,  curing  the  effect  of  a  variance  between  the  judgment  and 
execution,  it  seems  to  be  the  unavoidable  interpretation  of  it, 
that  sales  of  personalty,  under  execution,  must,  in  like  manner, 
be  upheld,  as  being  within  the  mischief.  Rutherford  v.  liabiirn. 
10  lied.,  144.     (See  Rev.  Code,  eh.  44.  see.  13.) 

54.  Where  a  party  claims  as  purchaser  under  an  execution, 
issuing  from  a  court  of  equity,  and  alleges  that  the  other  party, 
clainfed  under  a  dee;1,  in  fraud  of  the  execution  creditor,  he  must 
show  the  decree  of  the  court  as  well  as  die  execution,  and,  to 
make  the  decree  evidence,  it  is  requisite  to  have  the  bill  and 
answer,  and  so  much  of  the  pleadings  and  orders  as  wouldshow 
that  the  decree  was  pronounced  in  a  cause  properly  constituted 
between  parties.      Williamson  v.  Bedford,  10  Ired.,  I 

55.  A  purchaser  of  land  at  an  execution  sale  gets  a  good  title,. 
although  tlie  sale  was  made  on  a  Tuesday  or  Wednesday  of  the 
week,  on  the  Monday  of  which  the  writ  was  returnable,  but  was 
not  returned.      Brooks  v.  Matdiff,  11  Ired.,  321. 

56.  Payment  to  the  sheriff  discharges  an  execution,  and  a  sub- 
sequent sale  of  property,  under  such  execution,  is  void,  and  con- 
veys no  title  to  the  purchaser.     MurreU  v.  Roberts,  11  Ired.,  424. 

57.  The  title'  to  land,  sold  under  execution,  vests  in  him  to 
whom  the  officer  makes  the  deed.  Garson  v.  S/nnff,  12  Ired., 
369. 

58.  A  deed  made  by  a  sheriff  or  coroner,  under  a  sale  by  exe- 
cution, passes  the  title,  notwithstanding  a  third  person  may,  at 
the  time,  lie  in  the,  adverse  possession  of  the  land.     Ibid. 

59.  In  claiming  land  under  an  execution  sale,  the  enquiry  is, 
whether  the  sheriff  has  sold  tin.'  particular  laud;  and  his  return 
is  to  be  taken  as  true,  until  the  contrary  appears.  Jackson  v. 
Jackson,  13  Ired.,  159. 

60.  Where  the  sheriff  returned,  "levied  on  265  acres  of  land, 
lying,  &C,  whereon  Iredell  Jackson  now  lives,"  and  in  his  deed 
conveyed  two  tracts,  one  of  100  acres,  ami  one  of  165,  not  con- 
tiguous, but  separated  by  another  small  tract,  and  it  appeared 
that  the  defendant  in  the  execution  lived  on  one  tract,  and  cul- 


EXECUTION.— Vin.  565 

tivated  the  whole  as  one  plantation,  it  was  held,  that  the  levy  and 
conveyance  by  the  sheriff  were  not  too  indefinite  or  inconsis- 
tent, and  that  in  such  case,  parol  evidence  of  the  identity  of  the 
land  was  admissible.     Ibid. 

61.  It  is  not  necessary  for  a  purchaser,  at  an  execution  sale, 
to  produce  a  judgment  corresponding  exactly  with  the  execu- 
tion, nor,  it  seems,  any  judgment  at  all.  Gre<  n  v.  CtiJc.  13  1ml. 
425. 

62.  After  a  debtor's  land  has  been  sold  under  execution  for 
the  payment  oi  his  debts,  he  is  only  a  tenant  at  sufferance,  a 
mere  occupant,  unless  he  is  able  to  snow  that,  for  some  cause  or 
other,  the  sheriff's  sale  did  nut  pass  his  estate.  Hence,  his  pos- 
session is  not  adverse,  so  as  to  prevent  the  purchaser  from  trans- 
ferring the  lega]  estate,  after  he  has  obtained  a  deed  from  the 
sheriff     II  ipson,  Busb.,  325. 

63.  Where  a  sheriff  sells  lands  under  several  executions,  and 
the  sale  is  rightful  under  one,  th<  >ugh  unlawful  under  the  others, 
the  purchaser  acquires  a  good  title.  Bailey  v.  Morgan,  Busb.,  3a2. 

64.  A  sheriff,  having  in  his  hands  several  executions  against 
A,  levied  upon  land  and  other  property  fur  their  satisfaction. 
One  of  these  executions  had  been  a-  igned,  to  indemnity  the 
sheriff  and  two  others  against  loss  as  sureties  of  A,  and  it  was 
agreed  between  the  sheriff  and  his  co-sureties,  that  one  of  them 
should  bid  off  the  property,  if  it  should  sell  low,  for  their  com- 
mon benefit,  and,  under  this  agreement,  the  land  was  bought: 
and  it  was  hill  that  the  agreement  was  not  fraudulent,  or  other- 
wise unlawful,  and  did  not  vitiate  the  sale.     Ibid. 

65.  A  variance  between  the  judgment  and  execution  is  cured 
by  the  act  of  1848.  Marshall  v.  Fisher,  1  Jones,  111.  (See  Rev. 
Code,  eh.  44.  see.  13.) 

66.  The  purchaser,  at  an  execution  sale,  of  an  interest  result- 
ing to  a  debtor  under  a  deed  of  trust,  does  not  acquire  the  legal 

■estate  by  the  sheriff's  deed.     And  rson  v.  Hdlomart,  1  Jones,  169. 

67.  Where  there  is  no  collusion  between  the  sheriff  and  a  pur- 
chaser at  an  execution  sale,  the  purchaser,  though  he  be  the 
plaintiff  in  the  execution,  will  acquire  the  legal  title  by  the 
sheriff's  deed,  notwithstanding  he  may  have  been  guilty  of 
fraudulent  conduct  in  suppressing  competition,  whereby  he  ob- 
tained the  property  at  an  under  value.  In  such  case,  the  de- 
fendant s  claim  to  relief  must  be  in  equity.  Hill  v.  Whitfield,  3 
Jones,  120. 

68.  The  purchaser  of  land  under  execution,  if  he  be  not  the 
plaintiff  in  the  execution,  need  not  show  any  judgment.  Har- 
din v.  Cheek,  3  Jones,  135. 

69.  The  purchaser  of  land,  at  an  execution  sale,  gets  all  the 
estate,  right  and  interest  of  the  defendant  in  the  execution,  even 
the  legal  estate  which  he  may  hold  as  trustee  for  another.  Giles 
v.  Calmer,  4  Jones,  386. 


566  EXECUTION.— VIII. 

70.  One  who  purchased  a  trust  estate,  under  execution,  prior 
to  the  act  of  1812,  only  got  the  possession  of  the  defendant  in 
the  execution,  and  the  equitable  right  to  be  substituted  to  the 
rights  of  the  creditor,  whose  debt  he  had  paid.  Taylor  v.  Gooch, 
4  Jones,  4.'>ii. 

71.  A  purchaser  at  a  sheriff's  sale,  under  execution,  is  not 
bound  to  show  that  the  sheriff  sold  on  the  proper  day  of  the 
week,  nor  can  his  purchase  be  defeated  by  any  irregularity  of 
that  kind.     Eeid  v.  Largent,  4  Jones,  4">4. 

72.  A  purchaser  of  land  at  a  sheriff's  sale,  under  a  vend,  expo., 
is  not  bound  to  show  any  thing  in  relation  to  the  disposition  of 
personal  chattels,  levied  on  under  the  fi.  fa.  Chasteen  v.  Phil- 
lips, 4  Jones  459. 

73.  Only  such  interest,  as  the  defendant  in  the  execution  has  in 
the  property  levied  on  and  sold,  whether  real  or  personal,  passes 
by  the  sheriff's  sale.     Homedey  v.  Hague,  4  Jones  481. 

74.  A  constable,  who  sold  goods  under  execution,  and  cried 
them  off  to  one,  to  whom  he  gave  time  for  payment,  but  retain- 
ed possession  of  them,  cannot  recover  against  the  purchaser  for 
goods  sold  and  delivered.      WUson  v.  Oswalt,  6  -Jones  566. 

75.  In  an  action  by  a  constable,  against  a  person  for  failing 
to  comply  with  an  execution  sale,  by  paying  for  the  goods  bid 
off,  where  some  of  the  executions  under  which  he  sold  were 
valid,  and  others  not  so,  but  goods  enough  consisting  of  several 
different  articles  were  sold  to  satisfy  all  of  them ;  it  ivas  held  to 
be  error  to  instruct  the  jury,  that,  if  any  one  of  the  executions 
were  good,  it  would  sustain  the  sale  of  all  t lie  goods.     Ibid. 

76.  If  one  purchases  under  a  fi.  fa.,  it  seems  that  his  purchase 
will  be  protected  from  the  effects  of  a  judgment  and  execution, 
in  an  attachment  levied  prior  to  the  teste  of  the  fi.  fa.,  under 
which  his  purchase  was  made.  Quaere.  McMillan  v.  Parsons,, 
7  Jones  163. 

77.  Where  a  purchaser  under  execution  takes  immediate  pos- 
session after  the  sale,  the  sheriff's  deed,  executed  to  him  after- 
wards, will  relate  to  the  time  of  the  sale,  and  annex  the  title  to 
his  possession,  so  as  to  enable  him  to  defend  it  against  a,  transfer 
of  the  land  subsequent  to  the  sale.  Richardson  v.  Thornton,  7 
Jones  458. 

78.  The  purchase  by  a  sheriff  or  constable,  at  his  own  sale,  un- 
der execution,  is  void,  and  the  case  is  not  altered  by  the  fact 
that  the  sale  is  conducted  by  another  officer,  who  is  acting  in 
concert  and  joint  interest  with  him.  Bobins&n  v.  Clark,  7  Jones 
562. 

See  (Ejectment — Ot  the  title  necessary  to  support  the  action, 
20-25-34-41-56-57-61-66-67-<;.S-i;!1)— (Ejectment— of  the  de- 
fence and  herein  of  the  consent  rule,  21-22-24-25-27-42) — (Estop- 
pel— By  deed,  8-31 ) — Estoppel — By  matterotherthanbyrecordor 
deed,  28-37-38) — (Evidence — Copies  of  deeds  and  other  instru- 


EXECUTION.—  VIII.-IX.  567 

merits,  when  admitted  and  how  proved,  25) — (Evidence — Pro- 
ceeding's in  other  suits,  when  and  how  far  evidence,  18-33-34-35- 
36) — (Execution — Lien  and  priority  of  executions,  28-29-30-31- 
32) — (Execution — What  may  be  levied  on  and  sold  under  execu- 
te in,  29) — ( Execution — Of  void  and  irregular  executions,  and  pro- 
ceedings to  set  aside  executions,  1  -13-17-18-21-22-24) — (Execu- 
tors and  Administrators — Of  their  liability  to  creditors,  &c,  109- 
110) — (Fraud — Conveyances  fraudulent  as  to  subsequent  purchas- 
ers, 13)-(Heirs--21-23-24-29-31-32-43)— (Interest,  19)— (Judg- 
ment— Of  the  effect  of  a  judgment,  2) — (Judgment — Of  irreg- 
ular, void  and  erroneous  judgments,  16) — (Limitation — As  to 
real  estate,  13) — (Mortgage — 4) — (Partnership — Of  the  sale  and 
purchase  of  partnership  effects,  1-3-6) — (Privies) — (Sheriff — 
Sales  by  Sheriffs) — (Trespass — Of  trespass  quart  clausum  /regit, 
30-31)- (Warranty— Of  real  estate,  17.) 

JX.       OF    THE    CAPIAS    AD    SATISFACIENDUM. 

1.  If  a  defendant  be  arrested  on  a  ca.  sa.  and  discharged  by 
the  plaintiff's  consent,  the  plaintiff  cannot  have  a  new  execra- 
tion against  him;  but  if  he  be  arrested  and  escape  by  the  neg- 
lect or  permission  of  the  sheriff,  the  plaintiff  may  have  a  new 
execution,  though  the  sheriff  could  not  arrest  or  hold  him  in 
custody  on  the  old  writ.  Ballard  v.  Averitt,  Tay.,  69  (48)  S.  C, 
2  Hay.',  17  (169.) 

2.  A  writ  commanding  "to  take  the  body,  &.,  until  the  sheriff 
make  a  sum  of  money,  and  have  that  money  in  court  on  the  re- 
turn dav"  is  not  a  ca.  sa.,  Imt  a  novelty  unknown  to  the  law. 
Firiky  v.  Smith,  4  Dev.,  95. 

3.  A  precept  directed  to  the  "  sheriff  or  jailor "  of  a  county 
and  commanding  him  "to  receive  the  body  of  the  defendant, 
into  the  common  jail  of  the  county,  and  him  safely  keep  within 
the  walls  of  the  said  jail,  until  he  shall  render"  to  the  plaintiff 
"the  amount  of  the  judgment,"  &c,  is  not  a  ca,  sa..  but  a  mit- 
Mmus,  and  without  a  proper  ca.  sa.  will  not  authorize  the  de- 
tention  of  the  defendant,  nor  make  the  sheriff  liable  for  his  es- 
cape.     Walker  v.  Pick,  2  Dev.  and  Bat.,  99. 

4.  A  precept  from  a  single  justice,  endorsed  on  a  justice's 
judgment  and  directed  to  the  sheriff,  commanding  him  "to  take 
the  body  "  of  1  he  defendant,  "  and  him  safely  keep,  until  he  is  dis- 
charged as  the  law  directs,"  though  an  informal,  yet  is  a  valid 
ca.  sa.,  and  will  justify  the  sin-riff  in  making  an  arrest  under  it. 
State  v.  Beeves,  4  Oev.  and  Bat.,  187. 

5.  If  a  ca.  sa.  and  a  fi.  fa.  are  both  issued,  and  after  the  sher- 
iff has  levied  the  fi.  fei.,  and  while  he  has  the  property  undis- 
posed of,  he  executes  the  ca.  sa.,  the  court,  upon  the  application 
of  the  debtor,  will  set  aside  the  ca.  sa.,  and  discharge  him  from 
custody.      Wheeler  v.  Bouchelle,  5  Ired.,  584. 


568  EXECUTION— IX.-X. 

6.  In  order  to  entitle  a  plaintiff  to  sue  out  a  writ  of  ca.  sa.,  un- 
der the  act  of  1844,  it  is  sufficient  for  him  to  make  affidavit,  "that 
the  defendant  had  fraudulently  concealed  his  money,  property  or 
effects,  to  defeat  his  debt,"  without  further  setting  forth,  that  the 
defendant  had  no  property  which  could  be  reached  by  a  fi.  fa- 
Brown  v.   Walk;  <S  Ired,  517.     (See  Rev.  Code,  ch.  59,  sec.  19.) 

See  (Process,  11.)  (Sheriff — Duty  of  sheriffs  in  relation  to  pro- 
cess issued  to  them — its  execution  and  return,  5-6-7.") 

X.       OF  THE  DISCHARGE  OP  THE    DEFENDANT  IN  THE  EXECDTION. 

1.  A  purchase  of  land  by  the  sheriff  from  the  defendant,  and  a 
promise  by  the  sheriff  to  apply  the  purchase  money  to  the  satis- 
faction of  the  execution,  do  not  amount  to  a  discharge  of  it,  but 
is  a  mere  executory  contract,  which  does  not  discharge  the  exe- 
cution till  performed.      Williams  v.  Bradlty,  2  Hay.,  :i(i.">,  (556.) 

2.  Where  a  defendant,  once  in  execution  on  a  ca.  .?".,  obtains 
his  liberty  by  the  assent  of  the  plaintiff,  he  cannot  be  retaken; 
and,  if  he  be  one  of  the  defendants  in  a  suit,  the  plaintiff  can 
neither  retake  him  nor  any  of  the  other  defendants.  Bryan  v. 
Simonton,  1  Hawks,  51. 

3.  A  seizure  of  goods  upon  an  execution  is  a  constructive  pay- 
ment, only  where,  unless  so  considered  an  injury  will  occur,  as 
where  the  sheriff  has  seized,  but  will  not  sell.  But  in  all  cases, 
where  the  defendant  has  got  back  the  goods,  with  or  without 
the  consent  of  the  sheriff,  the  seizure  is  no  payment,  and  a  new 
execution  may  issue,  and  this  whether  there  be  several  defen- 
dants, or  only  one.     In  the  matter  of  King,  2  Dev.,  341. 

4.  Where  a  sheriff,  having  an  execution  in  his  hands,  received, 
from  the  defendant  therein,  judgments  on  sundry  persons  in  sat- 
isfaction, but  made  no  entry  of  satisfaction  on  it,  it  was  held  that 
the  execution  was  not  satisfied,  and  the  defendant  not  discharged.. 
Taylor  v.  Kdlcy,  6  Jones,  324. 


EXECUTORS  AND  ADMINISTRATORS.— I. 


569 


EXECUTORS  AND  ADMINISTRATORS. 


I.  Letters  testamentary,  and  Letters 
of  Administration. 

II.  What  interest  vests  in  them  upon 
the  deatli  of  the  testator  or  intes- 
tate. 

III.  Executors*  son  tort. 

IV.  What  interest  vests  in  an  adminis- 

trator dc  bonis  rum. 
V    Of  co-executors   and   co-adminis- 
trators, and  their  liability  to  or 
for  each  other. 

VI.  01  sales  by  executors  and  admin- 
istrators, and  herein  ot  purchases 
by  them  at  their  own  sales. 

VII.  Of  suits  by  executors  and  adminis- 
trators. 


VIII.  Of  their  liability   for  funeral   ex- 
penses. 
IX.  Of  their  liability  to  creditors,  and 
herein  of  suits  against  them,  and 
their  defence. 
X.  Of  their  liability  to  legatees  and 
next  of  kin. 
XI.  Of   refunding  bonds    taken    from 

legatees  and  next  of  kin. 
XII.  Of  the  effect  ofmaking  a  debtor  an 
executor  or  administrator. 
XIV.  Of  the  claim  ot  executors  and  ad- 
ministrators  to,  or   liability  for 
costs. 
XV.  Of  the  compensation,  to  which  ex" 
ecutors   and  administrators    are 
entitled. 


LETTERS    TESTAMENTARY,    AND    LETTERS    OF     ADMINISTRATION. 


1.  When  the  next  of  kin  of  an  intestate  are  infants,  letters 
should  be  granted  durante  minore  aetate;  if  out  of  the  country, 
dvtramte  absentia.     RitchieY.  McAuslin,  1  Hay.,  220,  (251.) 

2.  When  the  next  of  kin  rdKde  in  a  foreign  country,  they  may 
appoint  a  person  to  take  administration  here,  and  the  court 
Otight  to  grant  letters  to  the  appointee.     Ibid. 

3.  The  court  ought  not  to  grant  letters  to  a  person  not  desig- 
nated in  the  act  of  assembly,  before  the  persons  designated  have 
refused.     Ibid.     (See  Rev.  Code,  ch,  46,  sec.  2.) 

4.  On  an  appeal  from  the  judgment  of  the  county  court,  upon 
a  petition  to  repeal  letters  of  administration  improperly  granted, 
the  superior  court  made  an  order  for  the  county  court  to  grant 
them  to  the  proper  person.     Ibid. 

5.  Letters  of  administration  granted  in  another  state  will  not 
entitle  the  administrator  to  sue  here.  Anonymous,  1  Hay.,  355, 
(406.)     S.  P.,  Butts  v.  Price,  Cord".  Rep.,  68,  (201.) 

6.  Letters  testamentary,  granted  in  another  state,  will  enable 
the  executor  to  sue  here.      Stephens  v.  Smart.  1  Car.  L.  R.,  471, 

(83.) 

7.  Proceedings  to  obtain  a  repeal  of  letters  of  administration 
must  be  commenced  in  the  court  in  which  the  letters  are  granted. 
The  superior  court  can  exercise  only  appellate  jurisdiction  in  such 
cases.     Ledbetter  v.  Lofton,  1  Murph.,  224. 

8.  An  alien  enemy  may  rightfully  act  as  executor  or  adminis- 
trator, if  resident  within  the  State,  by  the  permission  ol  the 


570         EXECUTORS  AND  ADMINISTRATORS.— I. 

proper  authority,  but  not  otherwise.     Carthey  v.  Webb,  2  Murph.r 
268,  S.  C,  1  Car.  L.  R.,  247,  (20.) 

9.  When  the  nearest  of  kin  are  subjects  of,  and  resident  in,  a 
hostile  country,  administration  should  be  granted  to  the  next  of 
kin  in  this  State.     Ibid. 

10.  If  the  next  of  kin  be  incapacitated  to  act,  administration 
shall  be  granted  to  the  next  in  degree,  who  is  qualified  to  act, 
in  preference  to  the  highest  creditor.     Ibid. 

11.  Where  letters  of  administration  are  granted  by  the  court 
of  a  county  in  which  the  intestate  never  resided,  they  are  void, 
so  that  a  petition  to  set  them  aside  will  not  be  sustained.  ( 'oUins 
v.  Turner,  N.  C.  Term  R.,  105,  (541.) 

12.  As  between  brothers,  letters  of  administration  will  be 
granted  to  the  one  most  interested  to  execute  the  duty  faithfully. 
Moore  v.  Moore,  1  Dev.,  352. 

13.  The  county  court  has  power  to  revoke  letters  of  adminis- 
tration, issued  during  the  same  term,  and  grant  them  to  another 
person.     Ibid. 

14.  A  judgment  of  the  county  court,  deciding  who  is  executor 
of  a  will,  is  conclusive  upon  all  other  courts,  and  cannot  be  ex- 
amined, although  it  be  erroneous;  therefore,  a  copy  of  the  will 
need  not  be  attached  to  the  letters  testamentary,  or  produced 
when  given  in  evidence.      Granberry  v.  Mhoon,  1  Dev.,  456. 

15.  Where  a  decedent  has  no  fixed  place  of  residence,  admin- 
istration is  properly  granted  by  the  courts  of  the  state  where  he 
died.     Leolr  v.  Gilchrist,  2  Dev.,  73. 

16.  An  administrator,  appointed  in  another  state,  has  no  right 
to  sue  in  the  courts  of  this;  but  where  he  has  the  possession  of 
a  bond  due  his  intestate,  and  assigns  it,  the  assignee  may  main- 
tain an  action  in  his  own  name.     Ibid. 

17.  A  grant  of  administration  in  the  following  words:  "Ad- 
minist  ration  en  the  estate  of  A,  granted  to  B,  he  giving  bond, 
&c,"  is  to  be  construed  an  unconditional  grant.  Hoskins  v. 
Mill,,;  2  Dev.,  360. 

18.  Letters  of  administration  are  only  a  copy  of  the  minutes, 
certified  under  the  seal  of  the  court.     Ibid. 

19.  Where  a.  testator  directed  that,  in  the  event  of  the  death 
of  his  executor,  the  county  court  should  appoint  some  peison  to 
administer  his  estate,  the  executor  of  the  first  executor  is  not 
the  executor  of  the  first  testator.  A  testator  may  direct  that 
his  executors  shall  act  jointly  or  in  succession.  Roanoke  Navi- 
gation Company  v.  Green,  .">  Dev.,  434. 

20.  The  giving  bond  by  an  administrator  is  not  a  condition 
precedent  to  his  appointment;  and  when  it  appeared  from  the 
records  of  the  court,  that  A  B  was  appointed  administrator,  and 
qualified  as  such,  though  a  blank  bond  was  signed  by  him  and 
his  sureties,  his  acts  as  administrator  were  held  valid  until  his 


EXECUTORS  AND  ADMINISTRATORS.— I.         571 

letters  were  called  in  and  revoked.  Sjiencerv.  Coltoon,  4Dev.,  225. 
81.  Upon  an  appeal  from  an  order  of  the  county  court,  grant- 
ing- letters  of  administration,  the  superior  court  acquires  general 
jurisdiction  of  the  matter,  and  may  grant  letters  to  one  not 
originally  a  party  to  the  contest.  Blount  v.  Moore,  1  Dev.  and 
Bat,  10. '  (Now  altered,  see  WaUis  v.  WciRis,  1  Winst.,  78. 

22.  An  entry  on  the  records  of  the  county  court  :  "it. is  or- 
dered that  S.  G.,  be  appointed  administrator  on  the  estate 
of  J.  G.,  on  his  entering  into  bond  in  the  sum  of  §4,000 
with  J.  B.  and  W.  S.  securities,"  is  a  valid  grant  of  administra- 
tion, although  it  is  not  stated  on  the  records  that  the  administra- 
tor gave  bond,  and  was  properly  qualified.  The  want  of  such 
statement  may  render  the  grant  detective,  and  authorize  the 
county  court  to  annul  it,  but  until  that  is  done,  the  grant  must 
be  taken  as  valid,  by  other  courts.  Spencer  v.  Cohoon,  1  Dev. 
and  Bat.,  27. 

23.  Letters  of  administration,  reciting  the  probate  of  a  will 
and  the  death  of  the  executor,  are  substantially  letters  de  bonis 
won,  although  not  expressly  stated  to  be  so.  White  v.  Wdte,  1 
Dev.  and  Bat.,  260. 

24.  The  county  courts  have  power  to  revoke  letters  of  admin- 
istration; and  the  transfer  of  the  assets  made  by  an  adminis- 
trator, whose  letters  have  been  revoked,  to  his  successor,  is 
proper.     Smith  v.  Collier,  :\  Dev.  and  Bat.,  65. 

2").  Until  the  settlement  and  distribution  of  an  estate,  the  ad- 
ministration is  incomplete,  and  must,  upon  the  death  of  the  ad- 
ministrator, be  committed  to  some  person  as  administrator  de 
bonis  nun,  and  not  to  the  executor  of  the  administrator,  and  this, 
although  the  administrator  was,  as  one  of  the  next  of  kin,  en- 
titled to  a  share  of  the  estate.  The  right  as  next  of  kin  did  not 
attach  to  any  particular  chattels,  and,  prima  facie,  the  unsold 
and  undivided  specific  goods  were  held  by  the  administrator  in 
his  official  character,  and  therefore  his  re^fcpentatives  do  not 
succeed  to  them.     Taylor  v.  Broolcs,  4  DevMnd  Bat.,  139. 

26.  The  court  of  probate  may  accept  the  renunciation  of  an 
executor,  at  any  time  before  he  has  intermeddled  with  the  effects 
of  his  testator,  even  after  he  has  proved  his  will.  So  of  the  ex- 
ecutor of  an  executor  as  to  the  first  will.  Mitchell  v.  Adams,  1 
Ired.,  298. 

27.  Where  A  died  leaving  a  will,  appointing  B  his  executor, 
and  B,  after  proving  his  will,  died,  leaving  0  andjDhis  executors, 
who  accepted  the  trusts  of  the  latter  will,  and  qualified  as  ex- 
ecutors thereof,  but  without  at  the  same  time  renouncing,  as  to 
the  first  will,  but  they  never  intermeddled  with  the  effects  of  the 
first  testator,  it  was  held  that  the  court  of  probate  had  the 
power,  years  afterwards,  to  accept  their  renunciation  as  to  the 
first  will,  and  grant  administration  thereon  cum  testamento  an- 
nexo;  and,  further,  that  the  acts,  being  within  the  power  and 


372  EXECUTORS  AND  ADMINISTRATORS.— T. 

jurisdiction  of  the  court  of  probate,  could  not  be  incidentally  or 
collaterally  impeached  in  any  other  court,  but  could  oidy  be' at- 
tacked, upon  an  application  to  the  court  of  probate,  to  revoke  the 
letters  of  administration  and  recall  the  executors.     Ibid. 

28.  After  probate  of  a  will,  an  executor  cannot  renounce  at 
his  own  pleasure,  but  can  only  do  so  by  leave  of  the  court.  Ibid. 

29.  The  county  courts  have  the  power  to  grant  administration, 
in  this  State,  of  the  effects  of  persons,  who  resided  and  died  in 
another  country.  And  the  court  of  the  county,  in  which  such 
deceased  person  had  effi  ots  to  be  administered  on,  or  bona  nota- 
tii/ia,  is  the  prop*r  county  to  grant  the  administration.  Smithv. 
Munroe,  1  [red.,  345. 

30.  A  right  to  a  distributive  share  of  an  intestate's  estate 
constitutes  such  bona  notabitia,  as  entitles  the  court  to  grant  ad- 
ministration.    Ibid. 

31.  Where  the  next  of  kin  reside  abroad,  it  is  in  the  power, 
and  it  is  the  duty  of  the  court  to  grant  administration  to  the 
appointee  of  such  next  of  kin.     Ibid. 

'62.  Letters  of  general  administration,  granted  during  the 
pendency  of  a  contest  respecting  the  probate  of  a  will,  are  null 
and  void.  And  such  letters,  being  entirely  void,  as  being  not 
within  the  power  of  the'  court  to  grant,  cannot  be  supported  as 
a  grant  of  administration  pendente  lite.  Slade  v.  Washburn,  3 
Ired.,  557. 

33.  Where  there  is  no  administration  .on  the  estate  of  an  in- 
testate until  ten  years  after  his  death,  the  grant  of  letters  then 
will  vest  the  legal  title  in  the  administrator  by  relation  from  the 
time  of  the  intestate's  death,  and  the  possession  of  the  effects  by 
the  next  of  kin,  in  the  mean  time,  though  claiming  them  as 
their  own,  will  be  no  bar  to  his  recovery  of  the  property.  Whit 
v.  Raj,  4  Ired.,  14. 

34.  If.  uinler  any  circumstances,  the  court  of  probate  in  the 
particular  case,  bahauthority  to  grant,  letters  testamentary,  or 
letters  of  administration,  though  they  may  be  voidable,  they  are 
not  absolutely  void.  If  the  court,  in  no  possible  state  of  things, 
could  grant  the  letters,  then  they  are  void,  and  convey  no  au- 
thority to  any  one  to  act  under  them.  Hyman  v.  Gaskins,  5 
Ired.,  267. 

35.  If  the  grant  be  void,  then  in  a  suit,  by  a  person  to  whom 
it  is  made,  the  defendant  may  plead  ne  ungues  executor;  but  oth- 
erwise, if  it  be  only  voidable,     Ibid. 

3o".  A  payment  by  a  debtor  to  one  who  has  obtained  letters 
testamentary,  or  of  administration,  from  a  court  of  competent 
jurisdiction,  is  a  good  discharge  to  him,  although  the  grant  be 
afterwards  declared  null  and  void.     Ibid. 

37.  The  county  court  has  no  right  to  appoint  an  administrator 
with  the  will  annexed,  where  there  is  an  executor  laboring  under 
no  disability,  until  he  has  renounced,  and  his  renunciation  ap- 


EXECUTORS  AND  ADMINISTRATORS.— I         573 

pears  of  record;  and  an  appointment  before  such  renunciation 
is  not  merely  voidable,  but  is  absolutely  void.  Springs  v.  Erwin, 
6  Ired..  27.  ' 

38.  The  grant  of  letters  of  administration,  upon  the  estate  of 
a  person  then  alive,  is  absolutely  void,  for  want  of  jurisdiction 
in  the  court,  and  the  fact,  that  tin-  supposed  intestate  was  then 
alive,  may  be  shown  by  the  defendants,  under  tic  plea  of  the 
general  issue  in  a  suit  on  the  administration  bond;  the  relator 
Being  at  ibi  rty  to  show,  if  he  can.  that  the  person  proved  to  be 
alive  was  not  the  person  upon  whose  estate  the  letters  were 
granted  though  he  bore  the  same  name.  State  v.  White,  7 
Ired..  116. 

39.  The  right  of  the  next  of  kin  to  letters  of  administration 
is  not  absolute  and  exclusive,  so  as  to  give  them  al  claim  to 
demand  thai  I  intment  of  a  third  person,  as  administrator, 
shall  be  vacati  d,  to  make  room  for  their  application.  Stoker 
v.  Kendall,  Bnsl  ..  242. 

40.  If  the  next  of  kin  do  not  apply  for  letters  of  administra- 
tion, or  tail  to  give  bond  and  security,  as  the  law  ri  [uires,  and 
the  county  court  thereupon  giv  s  the  appointnn  nl  te  other 
person,  the  next  of  kin  have  ao  further  right,  and  the  court  has 
no  power  to  revoke,  or  declare  void,  such  appointmi  nt.     Ibid. 

41.  A  county  court  may,  upon  its  own  mere  t  ,  istitute 
and  cany  on  a  ling  to  revoke  letters  test:  ,  which 
it  has  irregularly  and  improperly  issued.      Cm  n  y  0          if  Meck- 

.  Bissell,  -  Jones,  387. 

42.  It  the  widow  of  an  intestate  fail  to  make  application,  for 
the  grant  of  letters  of  administration  on  her  husband's  estate, 
for  an  u  ble  time,  and  the  court,  after  si  .  grant 
letters  to  another,  she  has  no  further  right,  and  the  court  can- 
not, at  her  instance,  revoke  such  letters  of  administration.  Jin- 
Jcins  v  Sapi  .  •">  Jones,  510. 

4.">.  In  a  contest  lor  the  grant  of  letters  of  administration. 
there  are  strictly  no  plaintiffs,  and  no  defendants.  .Ml  the  ap- 
plicants are  actors,  and  some  may  withdraw  ami  others  come  in 
at  any  time  during  the  progress  of  the  court,  even  i  an  ap- 

peal from  the  county  to  the  superior  court.  Atkins  v.  J/W  ',  rmisk, 
4  Jones.  :.'74. 

44.  Tin/  next  of  kin  of  a  decedent,  who  leaves  no  widow  nor 
issue,  have  the  right,  amongst  them,  of  admini  ti  a  on  the 
estate,  hut  the  right  is  not  vested  in  one  more  thaa  an<  tl  er.  and 
a  brother  or  sister  has  no  priority  over  the  children  of  a  de- 
ceased brother  or  sister;  and  the  court  should  select,  from  the 
next  of  kin,  the  person  best  qualified  to  administer  the  estate 
Ibid. 

45.  In  granting  letters  of  administration,  a  woman  who  can- 
not read  nor  write,  and  has  no  experience  in  keeping  accounts, 
or  in  settling  estates,  is   "incompetent,"  within  the  meaning  of 


■'574  EXECUTORS  AND  ADMINISTRATORS,— I.-II.-III. 

the  act,  Rev.  Code,  ch.  46,  sec.  3.     Stephenson  v.  Stephenson,  4 
Jones,  472. 

46.  An  executor,  appointed  in  the  state  where  the  testator  was 
domiciled,  may  accept  the  office  in  such  state,  and  renounce  it 
in  this  state,  and  an  administrator  cum  testamento  annexo,  may 
be  appointed  by  the  court  in  this  state  tc  sue  hera.  Hooper  v 
Moore,  5  Jones,  130.  # 

47.  The  person,  who  is  the  highest  creditor  at  the  death  of  an 
intestate,  is  the  one  who  is  entitled  to  administration  on  the  es- 
tate, under  the  Rev.  Code,  ch.  46,  sec.  2;  and  not  the  person  who 
may  purchase  in  claims  against  the  estate,  after  the  death  of  the 
decedent.     Pcarce  v.  Castrix,  8  Jones,  71. 

48.  Whenever  a  decedent  has  left  a  will  and  omitted  to  ap- 
point an  executor,  or  the  person  appointed  has  duly  renounced 
his  right  to  quality,  the  county  court  has  a  discretionary  power 
to  appoint  any  proper  person  administrator  with  the  will  an- 
nexed.    Suttle  v.  Turner,  8  Jones,  403. 

49.  Where  an  executor  has  renounced,  and  the  county  court 
has  proceeded  thereupon  to  appoint  an  administrator  with  the 
will  annexed,  it  cannot  proceed  to  set  aside  these  acts,  except  at 
the  instance  of  the  executor,  or  in  a  proceeding  to  which  he  is  a 
party,  or  of  which,  he  has  had  notice.     Ibid. 

50.  A  wido-^,  under  twenty-one  years  of  age,  cannot  be  ap- 
pointed an  administrator;  but  the  court  may  appoint  an  admin- 
istrator during  her  minority,  and  then  grant  to  tier  the  letters  of 
administration  upon  her  coming  of  full  age;  or  it  may  grant  the 
letters  to  her  appointee.      Wattis  v.   IVallis,  1  Winst.,  78. 

51.  On  an  appeal  from  a  grant  of  administration  by  the  coun- 
ty court,  the  superior  court  .should  not,  on  reversing  the  order, 
proceed  to  grant  letters  itself,  but  must,  order  a  procedendo  to 
the  county  court.     Ibid. 

See  (Executors  and  administrators — Of  sales  by  executors  and 
administrators,  and  herein  of  purchases  by  them  at  their  own 
sales,  13-14.) 

11.       WHAT  INTEREST  VESTS  IN  THEM  UPON    THE    DEATH    OF    A    TESTATOR  OR 
INTESTATE. 

1.  Where  a  person  had  agreed  to  purchase  a  horse,  which  was 
delivered  to  him,  and  was  to  be  his  when  he  paid  the  full  price, 
and  he  died  before  he  completed  the  payment,  it  was  held  that 
this  was  a  bailment  coupled  with  an  interest,  which,  on  his  death, 
vested  in  his  personal  representatives.  Grant  v.  Williams,  6 
Ired.,  341. 

III.       EXECUTORS     DE    SON    TORT. 

1.  If  an  executor  de  son  tort  sell  the  property  and   pay  debts, 


EXECUTORS  AND  ADMINISTRATORS.— III.        575 

the  rightful  executor  cannot  disturb  the  purchaser.  But  if  he 
dispose  of  the  property  not  to  pay  debts,  it  seems  that  he  transfers 
nothing  by  his  sale.     Hostler  v.  ScuU,  2  Hay.,  179,  (375.) 

2.  The  act  of  1715,  being  intended  for  the  protection  of  dead 
men's  estates,  and  not  for  the  personal  benefit  of  the  executor, 
may  be  pleaded  by  an  executor  de  son  tort  as  well  as  by  a  right- 
ful executor.  The  true  distinction  is,  that  whatever  will  protect 
the  assets  may  be  pleaded  by  any  executor,  but  those  rights 
which  the  law  allows  to  the  executor,  on  account  of  his  office, 
can  be  claimed  by  the  rightful  executor  only.  Mclntire  v.  Car- 
son, 2  Hawks,  ,344. 

3.  An  intermeddling,  for  which  there  is  a  colorable  right,  will 
not  make  a  wrongful  executorship.  Therefore,  whore  one  sold 
property  as  the  agent  of  another,  and  after  the  death  of  his  prin- 
cipal, collected  the  proceeds,  he  was  held  not  to  be  an  executor 
de  son  tort.     Turner  v.  Child,  1  Dev.,  25. 

4.  Where  there  is  an  administration,  acts  for  which  the  party 
is  responsible  to  the  administrator,  will  not  make  him  an  execu- 
tor de  son  tort.     Ibid. 

5.  Where  an  agent  appoints  one  under  him  to  sell  the  goods 
and  collect  the  debts  of  his  principal,  and,  upon  the  death  of  the 
latter,  notifies  his  substitute  that  the  agency  is  at  an  end,  if  the 
Substitute  acts  in  the  agency,  alter  such  notice,  he  becomes  an 
executor  de  son  tort.     Turner  v.  CkUd,  1  Dev.,  331. 

6.  An  executor  de  son  tort  cannot  retain  for  his  own  debt. 
Ibid. 

7.  An  administrator  who  holds  property  of  his  intestate,  under 
a  conveyance  fraudulent  and  void  against  creditors,  is  liable  to 
them  as  an  executor  de  son  tort.     Norfleet  v.  Beddich,  3  Dev.,  221. 

8.  One,  who  intermeddles  with  the  goods  of  a  decedent,  may  be 
subjected  as  an  executor  de  *t>n  tort,  although  letters  oi  adminis- 
tration afterwards  issue.  If  the  administration  be  committed  to 
him,  it   entitles  him  to  retain.     Ibid. 

y.  An  intermeddling,  afterthe  grant  of  an  administration,  does 
not  make  an  executor  de  son  tort,  because  the  intermeddier  is 
answerable  to  the  administrator,  but  if  the  intermeddier  claim, 
under  a  grant,  valid  as  against  the  administrator  but  void  as  to 
Creditors,  the  latter  may,  from  necessity,  subject  him  as  an  ex- 
ecutor de  -son  tort.     Ibid. 

10.  ( hie  who  sets  up  a  claim  to  goods  of  an  intestate,  under  a 
fraudulent  conveyance,  and  thereby  injures  the  sale  of  them, 
does  not  render  himself  an  executor  de  sun  tort.  Barnard  v. 
Gregory,  3  Dev.,  233. 

11.  A  resident  of  this  State,  at  whose  house  a  citizen  of  Georgia 
died  while  on  a  visit,  cannot,  in  a  suit  by  a  creditor  of  the  de- 
ceased, living  in  Georgia,  be  rendered  responsible,  as  an  executor 
de  son  tort,  for  taking  possession  of  a  sum  of  money,  which  the 
deceased  had  with  him  at  the  time  of  his  death,  and  paying  it 


576        EXECUTOES  AND  ADMINISTRATORS— III. 

over,  without  notice  of  the  creditor's  claim,  to  a  person  who  had 
administered  upon  the  effects  of  the  deceased  in  Georgia.  Nis- 
bet  v.  Stewart,  2  Dev.  and  Bat,  24 

12.  One  who  intermeddles  with  the  goods  of  a  deceased  person, 
after  the  will  is  proved,  or  administration  granted,  cannot  be  sued 
by  a  creditor  as  executor  de  son  tort,  unless  where  he  claims  under 
a  fraudulent  deed.  But  if  he  had  intermeddled  before  the  ap- 
pointment of  a  legal  administrator,  he  may  be  charged  as  execu- 
tor de  sou  tort,  though  there  lie  a  legal  administrator  at  the  date 
of  the  writ.     McMorine  v.  Storey,  3  Dev.  and  Mat..  87. 

13.  One  who  administers  upon  the  estate  of  a  fraudulent 
alienee,  and  take-'  pi  ion  of  the  goods  assigned,  may,  upon 
the  death  of  the  fraudulent  assignor,  be  sued  as  executor  de  son 
tort,  by  the  creditors  of  the  latter,  and  this,  although  administrar 
tion  may  have  been  granted  upon  his  estate.  McAforinev.  Storey^ 
4  Dev.  and  Bat.,  189. 

14.  The  ease  of  Turner  v.  Child,,  1  Dev.,  25,  explained  and  dis- 
tinguished from  this,  because  in  that  the  agent,  who  was  sought 
to  be  charged  as  executor  de  son  tort  of  his  deceased  principal, 
had  been  rightfully  put  into  the  possession  of  the  property,  not 
only  as  to  his  principal,  hut  as  to  all  the  world.     Ibid. 

15.  The  law  never  assigns  any  thing  to  the  administrator  but 
what  may  lie  lawfully  assigned.  Hence,  goods  conveyed  t<>  an 
assignee,  tor  1  he  purpose  of  defrauding  ere.  I i tors,  are  not  assigned 
to  the  administrator  of  the  assignee,  as  against  the  creditors  of 
the  assignor.     Ibid. 

16.  Where  a  father  made  a  fraudulent  conveyance  of  slaves  to 
his  son,  an  infant  of  tender  years,  and  then  died,  and  the  slaves 
were  talon  possession  of  by  the  grandfather  of  the  infant  for  his 
use  and  benefit,  it  was  held  that  the  grandfather  was  liable  to  be 
sued  by  a  creditor  of  the  deceased  father  as  executor  de  son  tort, 
aialt  hat  an  infantof  tenderyears  cannot  be  an  executor,  nor  be 
sued  as  such.     Bailey  v.  31iller,  5  lied.,  444. 

17.  If  a  fraudulent  donee  of  goods  disposes  of  them  to  anoth- 
er, who  accepts  them  bona  fide  upon  a  purchase,  or  even  to  keep 
for  the  donee,  the  vendee  or  bailee  would  not  be  executory 
son  tort.  But  an  infant  of  tender  years  can  neither  accept  such 
a  gift,  nor  constitute  an  agent  to  keep  possession  of  it  for  him. 
Ibid. 

18.  It  is  not  the  paper  title  merely  that  makes  one  an  execu- 
tor </,"  son  fort,  but  it  is  the  disposition,  or  the  possession  and  oc- 
cupation of  the  effects  that  do  it.     Ih'ul. 

19.  Goods  of  a  deceased  person,  in  the  hands  of  an  executor 
de  son  tort,  cannot  be  taken  in  execution  for  the  personal  debts 
of  such  executor  anv  more  than  in  the  case  of  any  rightful  execu- 
tor.    Grant  v.  Williams,  (i  Lred.,  .'141. 

20.  An  executor  de  son  tirt  cannot  be  called  up  to  support  a 
disabled  slave  of  the  deceased,  under  the  act  of  assembly.      Wcm- 


EXECUTORS  AND  ADMINISTRATORS— III-IV-V.  577 

&ms  of  Hyde  v.  Silvertkorn,  6  Ired_,  35(3.     (See  Rev.  Code,  ch. 
813,  see.  15.) 

21.  A  fraudulent  donee  of  personal  property,  holding  it  after 
the  donor's  death,  is  answerable  as  executor  de  -suit  tort.     Stur- 

v.  Davis,  9  [red.,  365. 

22.  An  executor  de  son  tort  cannot  bring  an  action.  Franc-is 
v.  Welch,  11  [red.,  215. 

23.  One  cannot  be  held  liable  as  executor  de  son  tort,  where 
there  is  a  rightful  executor,  except  in  cases  of  alleged  fraud. 
Ibid. 

24.  A  fraudulent  donee,  who  has  become  liable  to  creditors  as 
executor  de  son  tort,  of  his  donor,  cannot  discharge  himself  by 
delivery  of  the  thing  given,  to  one  who  afterwards  obtains  let- 
ters of  administration.     Morrison  v.  Smith.  Busk,  399. 

IV.        WHAT  INTEREST   VESTS   IN  AN  ADMINISTRATOR  DE  DOXIS  NON. 

1.  Where  an  administrator,  upon  the  eve  of  his  death,  deposi- 
ted the  money  of  his  intestate,  with  a  surety  to  his  administra- 
tion bond  for  safe  keeping,  with  instructions,  upon  a  settlement 
of  the  estate,  to  pay  it  over  to  his  intestate's  estate;  it  %uas  held 
that  the  administr;  lis  non  of  that  estate,  after  a  demand 
ami  refusal,  was  entitled  to  recover  the  same,  before  any  final  set- 
tlement.    Hackney  v.  Steadman,  1  Jones,  2U7. 

2.  Where  a  widow,  who  was,  together  with  her  only  daugh- 
ter, the  next  of  kin  of  her  husband,  upon  whose  estate  she  ad- 
ministered, and  as  a  part  thereof  held  a  certain  slave  for  six 
years,  and  then,  on  the  occasion  of  her  second  marriage,  conveyed, 
in  her  individual  nana:,  such  slave  to  a  trustee  in  trust  for  her- 
self and  her  daughter,  it  was  held  that  such  conveyance  was 
conclusive  to  show,  that  she  had  ceased  to  hold" the  slave  as  ad- 
ministratix:  tl  t  was  a  full  administration  as  to  it,  and 
that  after  her  death,  an  administrator  il<  bonis  mm  on  her  hus- 
band's estate  took  nothing  in  the  slave.       Quince  v.   Nixon,   6 

Joins.  289. 

Y.      Off  CO-EXECUTORS    AND    CO-AC5ITX1STRATORS,  AND    THEIR    LIABILITY    TO 
OR  FOR  EACH  OTHER. 

1.  An  account  settled  and  signed  by  one  administrator  in 
binding  upon  all.  and  will  bear  interest  from  the  time  it  waB 
signed.     Bailey  v.  ('■  Icran,  1  Hay..  !<>!.  (120.) 

2.  Where  co-executors  live  in  different  counties,  a  warrant 
from  a  justice  against  one  of  them  shall  not  be  abated  because 
ot  its  not  having  been  served  on  others,  who  were  out  of  the  jus- 
tice's jurisdiction.     Park  v.  Morrison,  1  Car.  E.  R.,  542,  (155.) 

3.  One  administrator  of  two  cannot  alone  discharge  a  debt  due 
the  estate,  by  receiving  a  proved  account  against  the  intestate 

37 


578    EXECUTOES  AND  ADMINISTRATORS..— V.-VI. 

although  the  receipt  purports  to  be  in  satisfaction  of  the  debt ; 
but  a  payment  to  one  of  the  administrators  would  have  been 
good.     Mangum  v.  Simms,  1  Car.  L.  1!.,  547,  (160.) 

4.  Where  A  and  B  were  co-executors  of  C,  and  A  gave  his 
bond  for  money  to  B,  styling  him  executor,  and  stating  that  he 
himself  had  borrowed  the  money  in  his  private  capacity,  and  not 

.a?  executor,  and  B  afterwards  died,  it  was  held  that  B's  admin- 
istrator could  maintain  an  action  on  this  bond,  and  this  without 
having  settled  or  paid  over  the  amount  to  another  executor. 
Alston  v.  Jackson,  4  Ired.,  49. 

5.  Where  there  wore  two  executors,  and  one  of  them  died,  and 
afterwards  the  other  died,  it  was  held  that  the  executor  of  the  last 
might  recover  at  law,  from  the  executor  of  the  co-executor  who 
died  first,  a  bond  belonging  bo  the  estate  of  the  first  testator. 
Lancaster  v.  McBryde,  5  Ired..  421. 

6.  One  of  several  executors  may  release  a  debt  or  demand  due 
to  the  testator;  and  it  not  necessary  that  all  should  join.  Hoke 
v.  Fleming,  10  Ired.,  263. 

VI.      OF    SALES  BY  EXECUTORS  AND  ADMINISTRATORS,  AND  HEREIN  OF  PUR- 
•  CHASES  BY  THEM  AT  THEIR  OWN  SALES. 

1.  An  executor,  as  such,  can  no  otherwise  become  entitled  to 
the  goods  of  his  testator,  than  by  paying  their  value  to  credi- 
tors. He  cannot  purchase  at  his  own  sale.  Boaitcell  v.  ],',  ■■null. 
2  Hay.,  1  (142.)  S.  P.  Corbin  v.  Waller,  Ibid  ins  (266.)  Tomlin- 
8onv.  Detestatius,  Ibid,  284  (462.)  Britt  n  \.  Browne,  2  Car. 
Law  Rep.,  447,  (332.)     Gordon  v.  Finhy,  3  Hawks  23!). 

2.  If  the  property  of  a  deceased  person  be  sold  by  the  sheriff, 
under  an  order  of  court,  the  executor  may  purchase  it  at  an  un- 
der value,  if  he  can;  but  if  he  purchase  at  his  own  sale,  lie  shall 
ans  er  for  the  real  value.  Towdinson  v.  Detestatius,  2  May.,  284 
(462.) 

3.  A  sale  of  land  by  two  executors,  though  four  are  empow- 
ered by  the  will,  is  good,  provided  the  other  two  refused  the  ex- 
ecutorship.    Miller  v.  White,  Tay.,  309  (135.) 

4.  When  a  testator  gives  his  executors  authority  to  sell  land, 
all  the  acting  executors,  alive  al  the  time,  must  join  in  the  deed. 
DebowY.  Hodge,  1  Car.  I..  1!..  368  (36.) 

5.  Where  the  executors  were  empowered  by  a  testator  to  sell 
lands,  and  two,  who  had  qualified)  sold  the  lands,  a  third,  who 
had  neither  intermeddled  with,  ma-  renounced  the  executorship, 
did  not  join,  or  refuse  to  join,  in  the  sale;  held  that  the  sale  was 
good;  held  further,  that  the  renunciation  of  an  executorship 
might  be  presumed  as  to  one,  who  had  not  intermeddled  for 
twenty  years  after  the  probate  of  the  will.  Mann  v.  Peay,  2 
Murph.,  84, 

6.  A  devisor,  having  a  house  and  lot  and  two  tracts  of  land, 


EXECUTORS  AND  ADMINISTRATORS.— VI.        579 

directed  his  executors  to  sell  one  of  the  tracts  and  the  house  and 
lot,  for  the  payment  of  his  debts,  and  gave  the  other  tract  to 
his  wife  for  life,  and  then  to  be  sold  and  the  money  to  be  divi- 
ded among  his  children.  One  of  the  tracts  of  land  was  sold  by 
the  executors,  and  afterwards  a  part  of  the  other  tract  was  sold 
by  one  of  the  executors,  the  other  having  died,  it  was  held  that 
the  last  sale  was  void,  as  the  power  to  sell  extended  to  only  one 
of  the  tracts  of  land,  and  not  to  the  other.  Brown  v.  !>■  \  .  2 
Morph.,  125. 

7.  An  executor  shall  not  be  permitted  to  become  a  purchaser, 
at  a  sale  made  by  him  as  such,  although  such  sale  is  public,  ne- 

.  fair,  for  full  price,  and  the  persons  inter  :sted  were  pre- 
ited  to  the  sale'.     Byden  v.  Joins,  1  Hawks  197. 

8.  A  purchase  from  one  administrator,  where  there  is  more 
than  one,  will  not  vest  a  title  in  the  purchaser;  otherwise  of  the 
purchase  froi  utor.     Gordon  v.  Findlay,  3  Hawks  239. 

9.  Neither  an  administrator,  nor  any  person  acting  as  trustee, 
ean  purchase  at  his  own  sale;  but  when  one  administrator  pur- 
chases a  slave  from  his  co-administrator,  it  is  not  strictly  a  pur- 
chase from  himself;  but  the  purchase  vests  no  title,  for  duty  and 
interest  being  in  opposition  in  the  purchaser,  the  ease  comes 
within  the  mischief  intended  to  be  .  iim  t  by  the  rule, 
which  prohibits  trustees  from  purchasing  of  tin  mselves.     Ibid. 

10.  Executors,  having  a  power  given  them   to  sell  lands  of 
their  testator,  are  personally  bound   by  a   covenant  that  "they 
do  forever  warrant  and  defend."  &c.      Godley  v.  Taylor,  3  Dev. 
178. 

11.  Where  a  testator  devised  that  his  executors  should  sell 
his  lands,  and  appointed  three  persons  as  his  executors,  onlvone 
of  whom  qualified  and  acted  as  his  executor,  a  sale  by  that  one 
alone -will,  under  the  statute  of  8th  Henry  8th,  ch.  4,' be  suffi- 
cient to  pass  the  estate,  without  its  appearing  that  the  others 
have  formally  renounced  the  executorship,  or  refused  to  join  in 
the  sale,  li'untl  v.  Sparks,  1  Dev.  and  Bat.,  389.  (See  Rev. 
Code,  eh.  46,  sec.  40. ) 

12.  'fhe  probate  of  the  will,  and  the  qualification  of  the  exi  c- 
utors  in  the  spiritual  court,  ar  to  the  valid  execu- 
tion of  a  power  over  lands,  conferred  on  the  executors  by  the 
will.  Nor  does  the  renunciation  of  the  office  of  executors  de- 
prive them  of  the  right  to  execute  the'  power,  unless  the  power 
was  given  to  them,  simj  ly  as  i         '           Ibid. 

13.  \  forbearance  to  enter  upon  the  duti  s  of  executor,  when 
the  will  is  proved,  is  presumptive  evidence  of  a  refusal  to  accept 
the  trust.      If  id. 

14.  If  an  executor  actually  renounce  of  record,  he  may  still 
come  forward,  qualify,  and  enter  upon  the  execution  of  the  func- 
tions of  his  office.     Ibid. 

15.  A  power  to  sell  land,  conferred  upon  several  executors, 


580        EXECUTORS  AND  ADMINISTRATORS.— VI. 

must  be  executed  by  all  who  proved  the  will.      TVasson  v.  King, 
2  Dev.  and  Bat,  262. 

16.  Whether  an  executor,  alter  joining  in  a  sale,  has  a  right 
to  refuse  to  execute  a  deed,  and  if  not,  whether  lie  shall  be  com- 
pelled to  join,  are  questions  which  belong  exclusively  to  a  court 
of  equity.     Ibid. 

17.  Land  directed  by  a  testator  to  lie  sold  by  his  executors, 
but  not  devised  to  them  for  that  purpose,  until  a  sale,  descends 
to  the  heirs.     Ferebee  v.  Proctor,  2  Dev.  and  Bat.,  439. 

18.  An  administrator  with  the  will  annexed  cannot,  by  vir- 
tue of  his  appointment,  execute  a  power  of  sale  given  to  the  ex- 
ecutor. Neither  will  a  decree  of  a  court  of  equity,  directing 
him  to  sell  and  convey,  enable  him  to  vest  a  legal  title  in  his 
vendee.  That  court  has  jurisdiction  only  to  direct  those  having 
the  legal  estate  to  join  in  a  sale,  for  the  purpose  of  executing 
the  trusts  of  the  will,  but  has  none  to  declare  the  legal  title  to 
be  in  any  person,  except  the  one  in  whom,  at  law,  it  vests. 
Ibid.  (Au  administrator  with  the  will  annexed  may  now  sell 
lands,  under  certain  circumstances.  See  Rev.  Code,  ch.  46, 
sec.  40.) 

19.  A  direction  to  sell  land  for  the  payment  of  debts,  or  for 
any  other  purpose,  which  naturally  brings  the  proceeds  into  the 
hands  of  the  executor,  vests,  by  implication,  a  power  of  sale  in 
him.     Ibid. 

20.  An  administrator  pendi  trie  lite  has  no  power  to  sell  the 
effects  of  the  deceased,  except  perishable  property.  SalterwMte 
v.  Carson,  3  Ired.,  549. 

21.  The  provisions  of  the  act  of  1846,  ch.  1,  do  not  apply  to 
a  case,  where  an  administrator  of  the  deceased  was  appointed 
before  the  1st  of  February,  1847,  though  that  administrator 
be  dead,  and  an  administration  de  t><>ii!>;  imn  be  granted  sub- 
sequently to  that  date,  when  the  act  was  to  go  into  operation. 
Powell  v.  Felton,  11  ired.,  469.  (See  Rev.  Code,  ch.  46,  sec.  44 
to  60,  inclusive.) 

22.  A,  being  in  embarrassed  circumstances,  purchased  a  tract 
of  land  from  B,  and  paid  for  it,  and  then  caused  a  deed  to  be 
made  from  B  to  A's  sons,  with  a  view  of  defrauding  his  creditors. 
A  then  died,  and  his  personal  estate  was  exhausted  in  the  pay- 
ment of  debts,  leaving  some  still  unpaid,  when  it  was  held  that 
his  administrator  could  not  obtain  an  order  from  the  court  under 
the  act  of  1846.  ch.  1,  to  sell  the  said  land  for  the  payment  of 
debts;  because  the  fraudulent  conveyance  was  not  made  by  the 
intestate  himself,  and  the  trust  in  the  sons  was  one  which  could 
not  have  been  sold  under  a  fi.  fa.,  or  attachment,  in  the  life  time 
of  A,  nor  could  a  court  of  equity  interfere  to  enforce  the  perform- 
ance. The  only  remedy  for  the  creditor  was  by  a  suit  in  equity, 
founded,  not  on  the  trust,  but  on  the  fraud,  by  which  A's  prop- 


EXECUTORS  AND  ADMINISTRATORS— VI.-VTI.    581 

erty  had  been  withdrawn  from  the  payment  of  his  debts.    HJtem 
v.  Tull,  13  Ired.,  57. 

23.  Where  a  slave  is  directed  in  a  will  to  be  sold,  at  the  expi- 
ration of  a  life  estate  given  therein,  the  executor  is  the  proper 
person  to  make  the  sale,  though  not  specially  directed  to  do  so. 
Bains  v.  Drake,  5  Jones,  1">.">. 

24.  Where  power  is  given  by  will  to  two  executors  to  sella 
slave,  and  one  of  them  makes  a  parol  sale  and  delivery,  which  is 
afterwards  concurred  in  by  the  executor,  the  power  of  sale  is 
well  executed.     Ibid. 

25.  Upon  a  petition  by  an  executor  or  administrator,  to  sell 
lands  for  the  payment  of  debts,  under  the  Rev.  Code,  ch.  46,  sec. 
45.  and  following,  no  notice  of  the  sale  is  required  to  be  given  to 
the  creditors.  .Nor  is  the  fund  raised  by  the  sale  under  the  direc- 
tion and  control  of  the  county  court,  which  ordered  it.  Thomp- 
son v.  Co..:  8  Jones,  311. 

26.  After  making  an  order  for  confirming  the  sale,  made  by 
virtue  of  the  act  just  above  referred  to,  the  jurisdiction  of  the 
county  court  is  at  an  ead,  and  mi  petition,  to  open  the  biddings 
under  such  sale,  can  lie  sustained.     Ibid. 

27.  The  county  c  no  jurisdiction  of  ti  petition,  or  bill, 
at  the  suit  of  creditors,  to  eon  vert  a  purchaser  of  land,  under  the 
act  above  referred  to.  into  a  trustee,  upon  the  allegation  erf 
fraud  and  collusion.     Ibid. 

28.  Where  an  executi  >r  pn  e  a  part  of  a  standing  crop,  belong- 
ing to  the  estate  of  his  testator,  to  one  for  hauling  the  remainder 
to  the  crib,  it  was  held  that  he  did  not  thereby  incur  the  penalty 
imposed  by  the  Rev.  Code,  ch.  4li,  sec.  20,  for  selling  his  testa- 
tor's estate  otherwise  than  at  public  auction.     MeDanielx.  Johns, 

.  414. 

29.  Where  a  person  bid  off  a  parcel  of  wheat  at  an  adminis- 
trator's sale,  and  another  person  came  forward  and  gave  his  note 
for  it,  in  compliance  with  the  terms  of  the  sale,  if  axis  held  that  it 
was  proper  to  leave  it  as  a.  question  for  the  jury,  whether  the 
latter  intended  to  become  the  purchaser  himself,  or  only  to  be 
the  surety  of  the  bidder.     Thompson  v.  Andrews,  8  Jones,  453. 

VII.        OF  SUITS  BY  EXECUTORS  AND  ADMINISTRATORS. 

1.  Letters  of  administration  nfied  not  remain  in  court,  for  they 
are  not  deimmdable  after  issue  joined.  Berry  v.  Pulliatn,  1  Hay, 
16,  (21.) 

2.  An  administrator  may  sue,  as  such,  upon  his  own  possession. 
Ibid. 

.">.  When  an  executor  declares  as  such,  he  must  make  profert 
of  his  letters  testamentary,  and  after  the  first  term  they  need  not 
be  produced  again;  but  if  he  declare  upon  his  own  possession, 
the  fact  of  executorship  forms  a  part  of  his  title,  and  must  be 


582       EXECUTOES  AND  ADMINISTRATORS.— VIE 

proved  on  the  trial,  by  the  production  of  the  letters  themselves, 
unless  they  are  lost,  when  perhaps  other  proof  of  executorship 
will  be  admitted.     v.  Oldham,  1  Hay.,  165,  (190.) 

4.  Whether  an  administrator  de  bonis  non  can  sue  upon  a  bond 
given  to  the  former  administrator  as  such,  for  goods  purchased 
at  his  sale,  quaere.  Anonymous,  "2  Hay.,  18,  (170.)  It  seems 
that  he  may.     CutJar  v  Quince.     Ibid,  60,  (227.) 

5.  Every  suit  at  law,  to  recover  any  part  of  the  property  of  an 
intestate,  or  any  debt  due  his  estate,  must  be  brought  by  the 
administrator,  who  is  the  only  legal  owner.  It  cannot  be  brought 
by  the  next  of  kin,  for  their  claim  is  through  the  administrator, 
and  not  above  him.  ,  Davghtry  v.  Saynes,  1  Car.,  L.  1!.,  480,  (92.) 

6.  An  administrator  cannot  bring  trover  for  a  chattel,  after  bis 
consent,  before  administration  granted,  that  defendant,  the  next 
of  kin,  shall  have  it.     Cross  v.  T<  rliiujtov,  2  Murphy  6. 

7.  And  his  having  fatten  a  conveyance  for  the  ^battel  from 
the  next  of  kin.  before  administration  granteH,  though  such  con- 
veyance be  set  aside  for  fraud,  is  evidence  of  his  assent.     Ibid. 

8.  An  administrator  shall  have  a  judgment  upon  a  soi.  fa.,  on 
a  refunding  bond,  when  the  defendant  pleads  that  the  debt  re- 
covered against  the  administrator  was  not  justly  due,  but  was 
obtained  by  collusion,  unless  the  defendant  can  support  his  plea 
by  proof  as  upon  him  the  burthen  of  such  proof  lies.  Gheatkam 
v.  BoyJcin,  2  Murph.,  301.     S.  C,  1  Car.  L.  Ik,  289,  (29.) 

9.  Where  the  same  person  is  the  administrator  of  both  the 
creditor  and  the  debtor,  and  has  assets  in  hands  of  the  latter  suf- 
ficient to  discharge  the  debt,  it  is  extinguished.  Muse  v.  Saw- 
yer, X.  C  Term,  ];.,  204,  (637.) 

10.  Where,  on  a  sale  by  executors,  the  terms  made  known  were 
twelve  months  credit  upon  giving  bond  and  security,  and  the  de- 
fendant purchased,  but  refused  to  pay  the  money  or  give  a  bond, 
it  was  held  that  the  executors  might  immediately  sue  for  the  mo- 
ney, notwithstanding  the  terms  for  the  twelve  months'  credit. 
Peebles  v.  Overton,  2  Murph.,  384, 

11.  An  administrator  de  bonis  non  is  barred  by  a  continued  ad- 
verse possession,  of  three  years,  against  he  first  administrator. 
HosJdns  v.  Miller,  2  Dev.,  360. 

12.  In  an  action  by  an  administrator  for  an  injury  clone  to  his 
intestate,  after  a  plea  in  bar,  the  defendant  cannot  impeach  the 
grant  of  administration.     Spencer  v.  Cohoon,  3  Dev.,  80. 

13.  Where  an  administrator  seeks  to  revive  a  suit  commenced 
by  his  intestate,  he  must  do  it  by  motion,  and  the  defendant  may 
then  put  the  administration  in  issue.  It  cannot,  however,  be 
impeached  as  a  ground  of  nonsuit  at  the  trial.     Ibid. 

14.  But  where  the  defendant  claims  title  by  a  grant  of  admin- 
istration, previous  to  that  of  the  plaintiff,  or  relies  on  his  pos- 
session against  the  first  administrator,  he  may,  upon  the  gene- 


EXECUTORS  AND  ADMINISTRATORS.— VII.       583' 

ral  issue,  prove  the  first  grant  of  administration ;  because  this  is 
in  avoidance  of  the  plaintiff's  title.     Ibid. 

15.  (  Jounsel  lees  paid  by  an  executor,  in  a  suit  brought  against 
him,  in  which  lie  was  successful,  cannot  be  recovered  in  an  ac- 
tion on  a  bond,  conditioned  to  exonerate  him  from  liability  on 
account  of  his  executorship.     Sumner  v.    lVhidb<<\  3  Dev.,  £4. 

lt>.  When  an  executor  sells  the  assets  of  his  testator,  avid  takes 
a  bond  payable  to  himself  as  executor;  and  dies,  leaving  the  bond 
uncollected,  it  was  held,  in  the  absence  of  any  evidence  that  the 
executor  had  appropriated  the  bond  to  his  own  use,  that  both 
at  common  law,  and  under  the  act  of  1794,  the  bond  was  of  the 
of  the  testator,  and  an  action  might  be  brought  on  it  by 
the  administrator  dc  bonis  nun.  Eurev.  Ewe]  3  Dev.,  206.  (See 
Rev.  Code,  eh.  46,  sec.  17.) 

17.  .V  debt  due  an  administrator  bv  his  intestate  is,  in  law, 
paid,  the  instant  assets  applicable  to  ifare  received,  and  nothing. 

will  set  it  up  again;  as  where'  an  administrator  was 
tihe  obligee  of  a  bond  executed  by  his  intestate  and  another,  it 
was  h  tisfied  by  the  receipt  of  assets  applicable  to  it, 

although  the  obligee  was  afterwards  compelled  to  pay  other 
bond  debts  of  his  intestate,  to  which  he  was  surety.  And  it 
hat  the  act  of  1829  would  not.  in  such  a  ease,  benefit  the 
administrator.  ChqMnv.  Hones,  4  Dev.,  103.  (See  Rev.  Code, 
eh.  110,  sec.  4.)    I 

18.  An  application  to  the  county  court,  by  an  executor,  for  an 
order  appointing  Commissioners  to  divide  the  estate  of  his  testa- 
tor among  the  legatees,  without  any  proceeding  to  malic  those 
legatees  parties,  is  merely  ex  parte,  and  will  not  authorize  the 
court  to  !  t  judgment  of  confirmation,  so  as  to  bind  the  lega- 
tees; nor  to  make  an  order  that  such  of  tin'  legatees  as  came  in 
voluntarily,  and  opposed  the  confirmation  of  the  report,  shall  pay 
cost.     /.'  .,/:,,  v.   Maget,  1  Dev.  and  Bat,  498. 

19.  If  one  of  two,  or  mere,  obligors  in  a  bund,  administer 
mpon  tb  :  estate  of  the  obligee,  he  cannot  maintain  an  action  on 
the  bond  against  the  obligors;  and  though  the  action  is  only 
suspended  during  the  life  of  the  administrator,  and  may  be 
brought  by  the  administrator  de  bemis  non  of  the  intestate,  yet 
tie-  <i<  fence  is  properly  upon  a  plea  in  bar,  instead  of  a  plea  in 
abatement.     Carroll  v.  Durham,  1  Ired.,  :'>(>. 

20.  If  one  of  the  obligors  becemesan  executor  of  the  obligee, 
Hi-  action  is  not  merely  suspended,  but  the  debt  is  extinguished. 
But  in  such  cases  both  the  executor  and  administrator  must  ac- 
count for  the  debt,  as  assets,  to  creditors,  and  legatees  or  next  of 
kin.     Ibid. 

21.  What  relief  a  surety,  who  administers  upon  the  estate  oi 
his  obligee,  may  have  against  his  co-obligors  discussed.     Ibid. 

22.  An  administrator  in  this  state  cannot  unite  with  him,  in 


584  EXECUTORS  AND  ADMINISTRATOKS.-VII-VIII-IX. 

an  action  here,  one  who  was  joint  administrator  with  him    in 
another  state.     Lee  v.  Game,  2  Ired.,  440. 

23.  In  this  State,  only  the  executors,  who  qualify  by  taking 
the  necessary  oaths,  are  required  to  join  in  an  action,  for  a  debt 
or  demand  due  to  their  testator.     Alston  v.   Alston,   3  Ired.,  447. 

24.  In  actions  by  administrators,  the  letters  of  administration, 
granted  as  they  are  by  a  domestic  tribunal  of  exclusive  juris- 
diction, and  remaining  unrevoked,  are  prima  facie  evidence  of 
the  death  of  the  alleged  intestate,  and  of  the  light  of  represent- 
ing him.     BricMousev.  Brickhouse,  11  Ired.,  404. 

25.  Where  the  goods  of  an  intestate  are  converted  after  his 
death,  his  administrator,  in  an  action  of  trover  to  recover  the 
value,  must  produce  on  the  trial  his  letters  of  administration  as 
evidence  of  his  title.     Kesler  v.  Bosemctn,  Ihisb.,  389. 

26.  Where  a  plaintiff  sues  in  his  own  eight,  but  names  him- 
self "as  executor,"  these  words  may  be  rejected  as  surplusage,  and 
he  may  recover  in  his  own  right.      Cottony.  Davis,  3  Jones.  355. 

27.  Where  one  sues  as  administrator,  he  must  make  profert  of 
his  letters  of  administration,  and,  if  no  over  be  demanded,  he  is 
not  bound  to  produce  them  on  the  trial.  Hyman  v.  Gray,  4 
Jones.  155.     S.  P.  Baas  v  To  for,  4  Jones,  499. 

See.  (Sheriff — Liability  for  escapes,  9.) 

VIII.       OF    THEIR    LIABILITY    FOR     FUNERAL    EXPENSES. 

See  (Executors  and  Administrators — Of  their  liability  to  credi- 
tors, 53-54-60-102-103.) 

IX.       OF   THEIR    LIABILITY    TO    CREDITORS,    AND     HEREIN    OF    SUITS    AGAINST 
THEM    AND  THEIR    DEFENCE. 

1.  Trover,  trespass,  deceit,  or  any  other  action  of  the  like  na- 
ture, will  lie  against  executors,  where  the  thing  itself  has  been 
used,  so  as  to  go  into  and  increase  the  testator's  estate,  and 
the  benefit  thereof  eomes  to  the  possession  of  the  executor;  oth- , 
erwise,  where  the  thing  is  destroyed.  McKinnie  v.  Oli/t/iont,  1 
Hay.,  3,  (6.)  S.  P.,  Decrow  v.  None,  Ibid,  21,  (28.)  Clark  v. 
Kenan,  Ibid,  308,  (355.) 

2.  When  "no  assets"  is  pleaded,  the  plaintiff  shall  "nave 
judgment  for  the  amount  of  the  assets  which  he  can  show  to  be 
in  the  hands  of  the  administrator,  and  a  judgment  qvando  for  the 
residue  of  his  debt.     McRae  v.  Moore,  1  Hay.,  182,  (209.) 

3  Where  an  administrator  omits  to  plead  plene  administravti, 
and  there  is  judgment  against  him.  on  nidla  bona  being  returned 
to  an  execution  de  bonis  testatoris,  the  plaintiff  may  take  out  ex- 
ecution de  bonis  propriis,  without  waiting  for  the  return  of  a 
devastavit.  Border,  v.  Nash,  War.,  42,  (34.)  S.  P.,  Hogg  v. 
White,  1  Hay.,  298,  (344.)     Burnside  v.  Green,  2  Hay.,  112,  (271.) 


EXECUTORS  AND  ADMINISTRATORS.— IX.        5S5 

Alston v.  Harris,  Ibid.  125,  (285.)  Overruled,  see  Parker  v.  SVe- 
phens,  1  Hay.,  218,  (250.)  Hunter  v.  Hunter,  N.  C.  Term  Rep., 
122,  (558.) 

4.  Where  there  are  several  demands  of  equal  dignity,  and  a 
deficiency  of  assets  to  pay  all  the  credit  its.  the  executor  may, 
before  any  suit  brought,  pay,  to  the  amount  of  the  assets,  which 
of  them  lie  pleases.  Anonymous,  1  Hay.,  295,  (34.)  S.  P.,  Gricr 
v.  Combs,  Tay.  138,  (85,)  S.  C.  2  Hay.. 'us.  (235.) 

5.  After  suit  brought,  an  executor  cannot  make  a  voluntary 
payment,  being  restrained  by  the  commencement  of  the  suit,  and 
his  baying  notice  thereof;  still  it  is  not  priority  of  suit,  but  pri- 
ority of  judgment  that  entitles,  as  against  au  executor,  to  priority 
of  payment:  a  plea  of  former  suit,  therefore,  is  not  a  good  plea 
in  bar  for  an  executor;  it  should  lie  a  plea  of  former  judgment 
Ibid. 

6.  The  plea  of  plene  administravit  must  be  true  when  it  is  put 
in,  and  not  at  the  time  of  the  trial.     Anonymous,  1  Hay.,  297, 

(343-)     .... 

7.  Trover  will   lie   against  executors,   for  a  conversion  m  the 

life  time  of  their  testator,  although  the  estate  may  not  have 
been  benefitted  by  the  conversion.     Avery  v.  Moore,  1  Hay.,  362, 

(415-)  .  .... 

8.  -V   retainer  may  lie  either  pleaded,  it  given  m  evidence, 

under  the  general  issue.     Evans  v.  Norris,  1  Hay.,  411,  (473.) 

St.  An  administrator  can  only  retain  to  satisfy  his  own  de- 
mand, when  it  is  of  equal  dignity  with  that  of  the  creditor, 
against  whom  it  is  retained;  but  against  debts  of  a  higher  dig- 
nity he  cannot  retain.     Ibid. 

10.  Voluntary  payments  by  an  executor,  after  the  teste  of  a 
writ  against  him,  though  before  plea  pleaded,  are  not  allowable. 
McNaughton  v.  Blocker,  1  Hay.,  417.  (181.) 

11.  An  executor  is  bound  to  pay  debts  already  due,  before 
those  not  yet  payable.     Evans  v.  Horrid,  1  Hay.  411. 

]■/.  Judgments  obtained  against  an  executor,  after  the  teste  of 
the  writ,  may  be  pleaded,  if  obtained  before  the  proper  time  of 
pleading.     Ibid. 

13.  Debts  assumed  by  an  administrator,  before  the  teste  of  the 
writ,  must  be  allowed  to  the  amount  of  the  assumpsit.     Ibid. 

14.  When  two  judgments  are  obtained  against  an  adminis- 
trator, the  first  an  absolute  one,  and  the  other  a  judgment  qi  ando, 
and  assets  afterwards  come  to  the  hands  of  the  administrator, 
quaere  as  to  which  judgment  they  are  first  applicable.  Anony- 
mous, 1  Hay.,  460,  (530.) 

15.  An  administrator  should  return,  in  his  inventory,  which 
of  the  did  its  are  sperate,  and  which  desperate;  otherwise,  all 
will  be  presumed  good,  until  he  shows  the  contrary.  Anony- 
m'i/i.%  t  I  lay,  481,  (554) 

16.  The  plea  of  plene  administravit  should  be  received  at  all 


586        EXECUTORS  AND  ADMINISTRATORS.— IX. 

timte,  provided  the  defendant  do  not  come  with  it  at  a  very  late- 
period,  and  thereby  delay  the  trial.  Anonymous,  1  Hay.,  484, 
(558.)  S.  P.  Sawyer  v.  Sexton,  2  Hay.,  67,(235.)  S.  0.  Tay., 
137,  (85.) 

17.  Upon  the  plea  of  />1euc  administravit,  the  defendant  can 
begin,  by  showing  an  administration  of  something,  and  then 'the 
plaintiff  must  provfc,  if  he  can,  by  the  inventory,  or  otherwise, 
assets  to  a  greater  amount  than  is  proved  to  have  been  adminis- 
tered.    Anonymous,  2  Hay.,  14,  (164.) 

18;  Where  administrators  pleaded  non  assumpsit  and  phne  ad- 
ministravit, upon  which  a  verdict  was  found  fur  the  plaintiff  on 
the  first  issue,  and  there  was  no  verdict  on  the  second,  it  was 
held,  on  a.  .v  •/.  fa.  to  charge  the  administrators  de  bonis propriis, 
that,  of  necessity,  they  must  lie  allowed  to  plead  phne 
travit,  which,  however,  would  relate  to  the  teste  of  the  first  pro- 
cess; and  the  plea  was  allowed  then,  only  because  it  had  been 
put  to  tin-  original  action.  JEmmett  v.  Stedman,  '2  Hay.,  15, 
(166.) 

Id.  \\  h  re  an  administrator  was  sued  to  the  same  term,  on  a 
bond  and  a  simple  contract  debt,  and  to  the  latter  pleaded  pletu 
admini  travit,  and  afterwards  confessed  a  judgment,  held  that,  at 
a  subsequent  term,  he  might  add  a  plea  in  the  suit  on  the  simple 
epntract,  of  ""judgments  confessed  and  no  assets  ultra."  il'ool- 
fprd  v.  Simps  <n,  -  Hay.,  L32,  (299.) 

2d  [fan  executor  he  sued  in  three  actions,  and  iail  to  plead  a 
want  of  assets,  and  two  he  decided  against  him,  he  shall  not  be 
permitted  to  plead  the  judgment  in  these  two  in  discharge  if  as- 
sets to  the  third.  Cutlarv  Spiller,2  Hay.,  155,  (337.)  S.  P., 
rd,  Ibid,  ."•"'>.">,  (511,)  but  see  contra,  Teasdi  le  v. 
Branton,  Ibid,  pi,  (457.) 

21;  The  administrator,  on  a  plea  of  plene  administravit,  need 
not  prove  each  debt  that  he  paid  off  to  be  due;  he  may  provi  t  he 
payment,  and  the  plaintiff  may  show,  if  he  can.  that  the  debt 
was  not  due.     Bnnrn  v.  Lane,  2  Hay.,  159,  (344.) 

22.  If  a  bond  be  shown  to  an  administrator  before  letters  ta- 
ken out,  and  he  afterwards  pay  simple  contract  debts,  he  shall 
no!  be  allowed  them  against  the  bond;  notice  need  not  be  by 
suit,  showing  the  bond  being  sufficient.    Ibid. 

13.  The  practice  of  proving  a  simple  contract  debt  by  affida- 
vit, or  otherwise,  ex  parte  before  a  justice,  is  of  no  avail.     Ibid. 

24.  Advertising  in  a  newspaper,  printed  in  the  county,  is 
equivalent  to  advertising  "in  other  public  places  in  the  county," 
as  directed  by  the  act  in  the  case  of  executors  and  administra- 
tors. Blount  v.  Porterfield,  2  Hay.,  161,  (345.)  (See  Rev.  Code, 
ch.  46,  sec.  22.) 

25.  Letters  of  administration  on  the  estate  of  the  rightful  own- 
er of  a  slave,  taken  out  after  a  defendant  had  acquired  posses- 
sion, when  defendant  was  sued  by  a  stranger,  from  whose  pos- 


EXECUTOES  AND  ADMINISTEATOES— IX.        587 

session  he  took  him,  will  not  defeat  the  action,  though  it  will  di- 
minish the  damages.     Hostler  v.  Scull,  2  Hay.,  17!'.  (375.) 

26  An  action  on  the  case  lies  against  executors,  when  their 
testator  has  seduced  away  the  plaintiff's  .slave,  Cuilarv.  Brown, 
2  Bay.,  182,  (380.) 

-:■  In  support  of  his  plea  of  plene  admiiiistravit,  an  adminis- 
trator is  aot  bound  to  produce  the  sul  ascribing  witness  to  a  bond 
given  to  him  by  his  intestate,  but  may  prove  it  by  other  means. 
Woolf&jy.   Wright,  2  Hay..  230,  (409.) 

-s.   A  judgment  in  Virginia  against  defendant  as  executor,  to 
be  levied  de  bonis  testatoris,  is  proof  of  assets;  and,  in  <!>  i'l  on 
such  judgment  here,  the   judgment  shall  be  de  bonis  pri 
v.  Person,  2  Hay.,  301,  (490.) 

29.  [fan  administrator  plead  a  judgment  anil  no  assets  ultra, 
tli"  pi.1  ■.  iff  r:i;   ,'  iply  either  ,; <d  teil  n  ora\  or  ass  en 

any  other  fact  properly  triable  by  a  jury,     i  I  as- 
dale  v.  B  anton,  2  Hay.,  377,  (573.) 

30.  '1  he  act  of  171.">,  barring  claims  against  the  estates  of  deci  - 
dents  after  seven  years,  does  not  apply  in  a  case  where  the  plaintiff 
claims  immediately,  and  keeps  it  up  by  a  ndence 

of  payment,  although  seven  vears  elapse  before  suit 
be  I  rought,     Lit  '  !o,  n  v.  Gilchrist,  2  Hay.,  393,  (589.) 

31.  .'  >r  is  not  compelled  to  try  an  issue,  at  the  same 
term  at  which  it  is  made  no.  Alston  v.  Sumner,  2  Hay.,  404, 
(609.) 

:'>_'.  When  the  plea  of  plene  administravit  is  found  for  the  ad- 
minis  rator,  and  a  sci.  fa.  issues  to  the  heir,  the  administrator  is 
contie  ,  I  until  the  heir  comes  in.  so  that  he  may  make 

up  an  issue,  it  he  choose.     Hid. 

'33.  An  ex.e&utor  cannot  plead  that  he  has  fully  admini  ered 
since  the  last  continuance.  Smoot  v.  Wriqht,  Conf;  Eep.,  37l, 
(449.) 

34.  It  is  discretionary  with  the  court  to  allow  the  plea  of  plene 
adm.n'stravit  to  be  entered  .••t'ter  issue  joined  under  the  circum- 
stances of  the  case.     Beidv.  Hester,  Conf.  Rep.,  488,  (540.) 

35.  An  action  of  deceit  in  tin-  saleof  a  chattel  will  lie  against 
the  executors  of  the  testator,  who  made  the  sale'.  Arnold  v.  Ln- 
iti'T.  1  I '  ir.  L.  R.,  529,  (14:;.)  S.  P.  Helrne  v.  Saunders,  3  Hawks, 
563.     (See  Rev.  Code,  ch.  1,  sec.  1.) 

311  •■  Judgments  confessed,"  by  an  an  administrator,  after  plea 
ofplen  i  Iministravit  pleaded,  is  not  a  good  plea  for  him.  Church- 
ill v.  Gomron,  1  Murph.,  39,  S.  C.  Conf.  Eep.,  555,  (574.)  S.  1*. 
Gottins  v.  U)iderhM,  2  Car.  L.  R„  579,  (381.) 

37.  An  administrator  ought  to  be  made  a  party  defendant  by 
sci.  fa.     Mall i son  v.  Howard,  1  Murph.,  44. 

38.  The  truth  of  the  plea  of  "  fully  administered"  must  be 
tested  when  the  process  is  served,  or  when  the  plea  is  pleaded ; 
after  which  time  the  administrator  is  not  at  liberty  to  dispose  of 


588        EXECUTORS  AND  ADMINISTRATORS— IX. 

the  property  of  his  intestate,  although  it  was  proper  to  do  so 
before.  lie  can  sell  only  before  the  lien  of  the  creditor  attaches 
upon  the  goods  of  the  deceased  debtor.  Gregory  v.  Hooker-,  2 
Murph.,  250,  S.  C.  1  Car.  L.  R,  99,  (13.) 

39.  When  the  jury  finds  thai-  an  administrator  has  fully  ad- 
ministered, and  the  plaintiffwrters  up  a  general  judgment,  and 
proceeds  against  the  heirs,  he  cannot  proceed  tor  assets  which 
may  thereafter  come  to  the  administrator's  hands.  He  can  only 
do  so  when  he  enters  up  a  judgment  quando.  Miller  v.  Sfreftcer, 
2  Murph.,  281,  S.  C.  1  Car.'  1,  R,  264,  (25.) 

40.  Where  a  sale  was  made  by  the  administrator,  under  the 
act  of  Assembly,  on  a  credit,  before  the  commencement  of  the 
suit,  but  the  proceeds  were  not  received  until  after  plea  pleaded, 
helt!  that  proof  of  these  assets  shall  not  lie  given  again  !  the  ad- 
ministrator. In  a  eci.  fa.  upon  a  judgment  quando,  however,  the 
plaintiff  may  recover  such  assets,  coming  to  defendants  hands 
after  plea  pleaded  in  the  original  act  ion,  as  are  not  already  1  iound 
bv  outstanding  judgments.  Gregory  v.  Hooker,  2  Car.  L.  R., 
116,  (215.) 

40.  An  administrator  may  pay  debts  of  an  inferior  dignity, 
before  he  has  notice  of  those  of  a  superior  nature,  if  he  do  so 
without  fraud.     Delamothe  v.  Lanier,  2  Car.  L.  R,  413,  (296.) 

42.  A  contingent  debt,  though  secured  by  specialty,  shall  be 
postponed  to  a  simple  contract  debt.     Ibid. 

43.  When  an  administrator  confesses  judgment  on  a  penal 
bond,  the  condition  of  which  was,  that  the  intestate  should  exe- 
cute a  marriage  settlement  within  six  months  after  his  marriage, 
the  assets  are  protected  by  the  amount  of  the  judgment,  although 
such  bond  was  not  registered  Richardson  v.  Fleming,  2  Car. 
L.  i;.,  455,  (341.) 

44.  In  an  action  against  an  administrator  upon  an  administra- 
tion bond,  which  described  the  intestate  as  N.  R.,  the  plaintiff 
may  give  in  evidence  a  judgment  confessed  by  the  administra- 
tor, in  a  suit  brought  by  the  plaintiff  against  him,  wherein  his 
intestate  was  described  as  X.  W.  1!.,  the  court  being  satisfied  that 
N.  R.  and  N.  W.  R.  meant  the  same  person.  The  variance-,  if 
any,  should  have  been  taken  advantage  of,  when  ho  was  sued 
as  administrator  of  JSL  VV.  R.  Governor  v.  Ileilan^  2  Car.  L.  R., 
460,  (34(1.) 

45.  Judgment  will  not  be  arrested  on  an  administration  bond 
made  payable  to  the  governor,  notwithstanding  the  act  1795, 
which  required  it  to  be  made  payable  to  the  chairman  of  the 

.county  court,  because  it  is  good  as  a  common  law  bond.     Ibid. 

46.  Judgments  obtained  against  an  administrator,  after  service 
of  a  writ  and  before  plea,  make  him  responsible  for  the  assets 
he  had  when  served  with  the  writ,  although  such  judgments  are 
entered  up  quando-  Here  the  administrator  had  sold  all  the 
property  of  the  intestate,  under  the  act  of  assembly,  between 


EXECUTORS  AND  ADMINISTRATORS.— IX.        589 

the  time  of  the  service  of  the  writ,  and  the  judgment  quando. 
.Villi  such  judgments  may  be  pleaded  although  given  by  a  jus- 
tie!'  I'll-  a  sum  exceeding  £30,  provided  the  warrants  do  not  ex- 
fchat  sum.     lAtUejohn  v.  Underhill,  2  Car.   L.  R,  574,  (377.) 

47.  The  charge  of  keeping  an  eld  ami  infirm  slave  is  a  charge, 

in  favor  of  the  community,  upon   the   estate  of  a  testator  in  the 

hands  of  his  executor,  under  the   act  of  1798,  and  is  to  be  paid 

in  preference  to  the  claims  of  any  individual.     Ibid.     (See  Rev. 

i  li.  ■  ■''>.  sec.  16.) 

4*.  Where  an  administrator  is  fixed  with  assets  by  the  finding 
of  a  jury,  and  an  execution  issues,  on  which  "nulla  bona"  is  re- 
turned, the  next  proper  process  is  a  sci.  fa.  suggesting  a  rf<  vas- 
tavit,  and  not  a  special  ft.  fa.  Hunter,  v.  Hunter,  N.  C.  Term, 
R,  122.  (5K.) 

49.  A  executor,  who  has  assets,  and  promise's  to  pay  a.  d  ib1  of 
his  testator,  is  personally  bound  Sleighter  v.  Harrington,  N.  C. 
Term  R.  249,  (679,)  S.  <;„  2  Murph.,  332. 

51 ).  An  administrator,  against  whom  a  suit,  commenced  against 
his  intestate,  is  revived  by  a  sci.  fa.,  may  confess  judment  on  a 
writ,  subsequently  issued  against  him  as  administrator,  and  giv$ 
in  evidence  the  record  of  such  judgment,  in  support  of  his  plea 
of  fully  administered  to  the  suit  revived  by  sci.  fa.  Reynolds  v. 
Putney,  1  Hawks,  318. 

51.  An  administrator  may  retain  assets  to  satisfy  a  debt  due 
to  himself  on  a  note  of  his  intestate,  endorsed  to  him  after  the 
death  of  the  intestate,  but  prior  to  the  grant  of  administration. 
Ibid. 

52.  When  on  the  division  of  an  intestate's  slaves  among  his 
children,  an  allotment  is  made  to  A  greater  than  thai  made  to 
B,  another  child,  and,  for  equality  of  partition,  A  is  directed  to 
pay  a  certain  sum  to  B,  this  gives  I'>  a  lien  mi  A's  slaves  for  that 
amount,  and,  if  upon  A's  death,  his  administrator  sell  the  slaves. 
before  payment  is  made  to  B,  the  balance  only  of  the  purchase 
money,  after  such  payment,  will  be  assets  in  the  hands  of  the 
administrator  of  A.     Gregory  v.  Hooker,  1  Hawks,  394. 

53.  The  personal  representative  of  a  decedent  is  not  liable  for 
the  funeral  expenses  of  the  deceased,  unless  he  contracts  for 
them,  or  subsequently  promises  to  pay  for  them;  there  is  no  im- 
plied promise  to  pay  for  them.      Ibid. 

.')4.   Where  an   individual,  of  his  own   mere  notion,  buried  a 
ed  person,  and,  without  giving  notice  to  the  administra- 
tor of  the   expenses,  sued  for  them,  he  was  not  allowed  to  re- 
cover.    Ibid. 

55.  All  the  chattels  of  an  intestate,  of  which  the  administra- 
tor, by  reasonable  diligence,  might  have  possessed  himself,  are 
assets,  and  liable  to  creditors.      Gray  v.  Strain,  2  Hawks,  15. 

56.  It  is  the  duty  of  an  executor,  in  this  state,  to  take  out 
letters  testamentary  in  another  state,  for  the  purpose  of  suing 


"590        EXECUTORS  AND  ADMINISTRATORS.— IX. 

for  a  debt  there,  if  the  interest  of  the  estate,  which  he  rep- 
resents, requires  it;  and,  in  determining  this  point,  the  magni- 
tude of  the  debt,  the  distance,  and  probable  expense,  are  to  be 
considered.  An  omission  to  do  it,  when  necessary,  amounts  to  a 
devastavit.     Eelme   v.  Sanders,  3  Hawks,  563. 

;">7.  When  the  plaintffs  in  an   execution  are  administrators, 

who,  after  a  levy  by  the  sheriff,  suspend  the  proceedings,  and 

receive  the  money  from  the  defendant,  without  any  sale   by  the 

sheriff,  they  arc  liable  to  the  sheriff  for  his  commissions  indi- 

■.  and  not  as  administrators.     Mattock  v.  Gray,  4  Hawks,  1. 

58.  Where  the  plaintiff  fixes  the  administrator  with  assets  for 
a  part  of  his  claim,  he  recovers  that  amount  of  assets  and  all 
cost,  and  is  entitled  to  a  judgment  guando  for  the  residue;  which 
judgment,  if  nei  entered  upon  the  trial  term,  may  be  entered  af- 
terwards nunc  'pro  tunc,  provided  third  persons  be  not  injured  by 
it.     Gregory  v.  Haughton,  1  Dev.,  442. 

59.  Creditors  have  a  righl  to  assign  the  non-payment  of  their 
debts  as  a  breach  of  the  administration  bond,  and  to  put  it  in 
suit;  and  the  rule  df  damages  is  the  amount  of  the  judgment 
against  the  administrator,  where  one  has  been  obtained.  Wash- 
ington v.  Hunt,  1  Dev.,  475.     S.  P.,  Smith  v.  Fagan,  2  Dev.,  298. 

60.  Funeral  expenses  arc  a  charge  upon  the  assets,  indepen- 
dently of  any  premise  by  the  administrator,  and,  if  proper  to  the 
estate  and  degree  of  the  deceased,  must  be  preferred  to  all  other 
debts;  and  the  question  of  propriety  involves  in  it  the  enquiry, 
whether  the  funeral  expenses  were  unnecessarily  and  officiously 
incurred  by  a  stranger.     Parker  v.  Lewis,  -  Dev.,  21. 

61.  Del  its  due  by  specialty  follow  the  person  of  the 

and  area-sets  where  lie  has  a  domicil.  Leak  v.  G-ihhrist,  2 
Dev..  73. 

()±  A  sci.  fa.  is  a  proper  remedy  against  an  administrator,  to 
revive  an  unsatisfied  judgment  against  an  intestate.  Smithy. 
Fagan,  2  Dev.,  298. 

63.  The  consideration  of  a  promise  by  an?executor,  to  pay  the 
debts  of  his  testator,  ishis  liability:  and  as  that  depends  upon  his 
having  assets,  if  behave  none,  the  promise  is  void.  Williams 
v.  Chaffin,  ->  Dev.,  333. 

64.  But  it  such  promise  is  founded,  upon  any  other  considera- 
tion, such  as  a.  benefit  to  the  exi  cutor,  or  an  injury  to  the  cred- 
itor, it  is  binding;  but  the  inconvenience  or  injury  to  tee  cred- 
itor must  be  the  result  of  express  stipulation,  not  m  consequence 
of  a  reliance  upon  the  promise.  Therefore,  where  an  executor, 
not  having  assets,  promised  to  pay  the  debt  of  his  testate]',  and. 
in  reliance  upon  that  promise,  the  creditor  neglected  to  prose- 
cute his  claim,  it  /nix  held  that  lie  had  no  light  to  recover.  Ibid. 

65.  If  an  administrator  plead  "  fully  administered  "  except  a 
certain  sum,  and,  as  to  that  sum,  sets  forth  judgments  confessed 
by  him,  giving  the  particulars  of  each,  the  plaintiff  cannot  im- 


EXECUTORS  AND  ADMINISTRATORS.— IX.        591 

peach  any  of  those  judgments  for  fraud',  unless  upon  a  special 
replication.  But  if,  according  to  the  loose  practice  in  this  state, 
the  defendant  plead  that  he  has  confessed  sundry  judgments  at 
a  certain  term  of  the  court,  without  specifying  any  particulars 
of  them,  the  plaintiff  may,  undel  a  general  replication,  impeach 
anv  judgment  offered  by  the  defendant  in  support  of  his  plea. 
BeU  v.  Davison,  2  Dev.,  397. 

66.  [f  several  judgments  be  pleaded  by  an  administrator,  and 
the  plaintiff  falsify  any  of  them,  he  is  entitled  to  recover  the 
amount  thus  falsified,  although  the  defendant  has  in  fact  fully 
administered.     Ibid. 

(17.  Y\  here,  upon  the  plea  of  plene  administravit  prcefer,  &c,  the 
administration  account  was  referred  to  the  clerk,  and  be  was 
directed  to  ascertain  how  the  assets  were  disbursed,  or  confessed, 
with  Lberty  to  each  party  to  except,  and  the  repi  ,  e  evi- 
dence  on  the  trial,  and  the  clerk  excluded  one  judgment  and 
part  of  another,  for  rea  I  in  the  report,  it  was  held  thai 

the  defendant,  not  having'  excepted  to  the  report,  was  concluded 
by  it.     Ibid. 

68.  An  executor  is  not  bound  by  his  inventory,  though  it 
affords  strong  evidence  against  him.      Yarborouqh  v.  Harris  3 

Dev.  40. 

69.  A  special  administrator,  in  an  action  by  the  general  ad- 
ministrator, may  show  that  property  which  he  received  and 
inventoried,  as  belonging  to  the  intestate,  is  in  fact  the  property 
of  a  lunatic,  of  whom  the  special  administrator  was  appointed 
guardian,  alter  the  repeal  of  his  letters  of  administration.     Ibid 

70.  In  a  warrant  against  an  administrator,  jud 

dered  that  the  plaintiff  recover  his  debt  and  costs,  and.  : 

entry  made,  that  the  defendant  pleads,  "retainer,  ful 

tered,"  -V  was  held  that  the  justice  had  power  to  try 

that   he  had  negatived  them,  that  the  judgment  was  a   solute, 

and  that  the  non-payment  thereof  might  beassignedas  a  breach 

of  the  administration  fond.      Ile.'>v<x  v.    Dalton,  3  Dev. 

71.  A  judgment  entered  up  as  follows:  "1  i  ments 
and  retaim  r  admitted,  judgment  confessed  for,  &c,  to  b 

tied  whi  n  the  money  is  collected,  or  in  notes  beforehand,"  is  a 
judgment  quando.      Waughv.  Chajfin,  '■<  Dev.  101. 

72.  An  action  cannot  he  sustained  against  an  administrator, 
to  subject  him  personally  unless  he  lias  been  fixed  v  ith  assets 
Ibid. 

7.">.  A  .-</./<.,  suggesting  a  devastavit  by  an  administrator, 
does  not  survive againsi  hisexecutor.  Conradv.  Balton,  ">  Dev.] 
251.  (It  seems  that  it  does  survive  now,  see  Rev.  (.'ode.  , ■!,.  4g 
sec.  42.) 

74.  In  no  rase  is  the  executor  of  an  administrator  liable,  at 
law,  to  the  creditors  of  the  intestate,  though,  upon  a  proper  casi  •. 


592        EXECUTOES  AND  ADMINISTRATORS.— IX. 

he  may  be  made  responsible  in  equity.  Ibid.  (See  Rev.  Code, 
ch.  46'  sec.  42.) 

75.  An  execution  de,  bonis  propriis,  where  the  judgment  affects 
the  assets  only,  is  void ;  and  the  fact  that  the  costs,  tor  which  the 
administrator  was  liable,  were  included  in  the  execution,  does 
not  render  it  valid.     Cdtraine  v.  McCain,  3  Dev.,  308. 

7(1  A  judgment  quando  does  not  alter  the  dignity  of  a  debt, 
nor  fix  the  defendant  with  assets;  and  as  to  a  sci./a.  upon  it,  he 
may  show  that  he  has  paid  subsequent  assets  upon  a  debt  of  higher 
dignity,  it  follows  that  payment  of  a  judgment  quando  upon  a 
simple  contract  debt,  after  notice  of  an  outstanding  bond,  does 
not  protect  the  executor  against  the  latter.  Bountreev.  Sawyer, 
4  Dev.,  44. 

77.  A  plea  of  an  outstanding  bond  and  no  assets  ultra,  is  no 
defence  to  an  action  of  assumpsit  for  rent  due  upon  a  parol  lease, 
the  latter  being  of  equal  dignity  with  the  former.  Hubbell  v. 
Thurston,   4  Dev.,  502. 

78.  A  payment  by  an  administrator  of  the  assets  of  his  intes- 
tate to  the  next  of  kin,  within  less  than  two  years  after  his 
qualification,  and  without  taking  refunding  bonds,  will  not  sup- 
port the  plea  of  fully  administered  against  a  non-resident  credi- 
tor, who  has  brought  his  suit  within  three  years  from  the  time 
when  the  administration  was  taken.  McKinder  v.  Litilejohv,  1 
Ired.,  66.     (See  Rev.  Code,  ch.  65,  sec.  12.) 

79.  Under  the  act  allowing  executors  and  administrators  nine 
months  before  they  are  required  to  plead,  they  can  no  more  avail 
themselves,  under  the  plea  of  plene  administravit,  of  a  voluntary 
payment  of  a  debt  alter  notice  of  a  writ  sued  out,  than  they 
could  before  the  passage  of  that  act.  Whiter.  Arrington,  3  Ired., 
166.     (See  Rev.  Code,  ch.  46,  sec.  33.) 

80.  Where  an  administrator  has  returned,  in  his  inventory,  a 
debt  as  "desperate,''  it  is  not  necessary  for  a  creditor  suing 
such  administrator,  to  show  that  the  debt  was  due  to  the  testa- 
tor. It  is  sufficient  for  him  to  prove  that  the  debtor  was  solvent. 
in  order  to  throw  upon  the  administrator  the  burden  ot  showing 
that  the  debt  could  not  be  collected.  Huntingdon  v.  Spears,  3 
Ired.,  450. 

81.  If  an  executor,  at  his  own  sale,  procure  an  agent  to  buy 
for  him  any  part,  of  the  property  of  his  testator,  and  then  re-con- 
vey it  to  him,  such  executor  shall  account  for  the  full  value  of 
such  property,  or  for  such  higher  prices,  as  he  subsequently  ob- 
tains for  it,  above  the  amount  bid  by  his  agent.  Ford  v.  Blount, 
3  Ired.,  516. 

82.  It  is  well  settled  in  this  state,  that,  after  a  suit  by  a  cred- 
itor, an  executor  cannot  prejudice  him  by  a  voluntary  payment 
of  another  debt  of  equal  dignity.  And,  it  is  also  well  settled, 
that  after  a  plea  in  one  action,  the  executor  cannot  prejudice  the 
plaintiff  therein  by  availing  himself,  as  a  defence  for  the  want 


EXECUTOKS  AXD  ADMIXISTBATOBS.— IX.        593 

ts,   of  a  judgment  in  another  action  .subsequent  to  the 
plea  in  the  first     HaUv.  GuTLy,  4  Ired.,  o4.">. 

83.  The  plea  ought  to  state  the  assets  truly  as  they  existed,  in 
the  cine  ease  at  the  time  of  the  suit  brought,  and,  in  the  other 
at  the  time  of  the  plea  pleaded.  Therefore,  an  executor  cannot 
plead,  as  a  plea  puis  darrein  continuance,  judgments  recovered 
against  him  and  no  assets  ultra.     Ibid. 

:  he  reason  for  this  rule  is  stronger  in  this  State  than  in 
!.  because  here  the  executor  is  allowed  nine  months  from 
dificatiou  before  he  is  compelled  to  i  Head.     And  more  es- 
pecially ought  this  rule  to  In-  enforced,  when  the  justice  of  the 
plaintiffs  claim  was  admitted  at  first,  and  the  only  contest  was 
about  the  assets,  and  the  defendant  asks  to  be  permitted  to  plead. 
nit  nee,  after  six  year's  litigation  of  the  question 

85.  Only  fc]         tl  .in  which  a  person  lias  a  beneficial  ha- 

nd not  those  which  he  holds  in  trust  for  an- 
Green  v.  Collins,  "  Ired.,  139. 

86.  An  agreement   between  counsel  that,  in  an  action  at  law 

r,  the  j  try  might  enquire  as  to  equitable,  as 
well  as  li  gal  assets,  must  be  inoperative  at  law.  as  the  court  can- 
not assume  a  jurisdiction  which  the  law  does  not  confer;  and. 
i  ial  distinction  between  the  nature 
plication  of  legal  and  equitable  assets.     Ibid. 
NT.  Aii  executor  is  not  answerable  in  a  court  of  law,  as  for  a 
devastavit  in  relation  to  equitable  assets,  unless  so  far  as  these 
are  affected  by  the  act,  Rev.  Stat.,  ch.  4(5,  sec.  22.     Ibid.     (See 
Rev.  Code.  ch.  46;  sec.  32.) 

88.  If  an  executor  refuse  to  call  upon  the  trustee  of  a  legal  es- 
tate, the  entity  of  which  is  alleged  to  be  in  his  testator,  tin.-  on- 
ly tribunal  to  decide  upon  the  defaultsis-a  court  of  equity.  Ibid. 

89.  In  the  administration  of  assets,  justices'  judgments  are  to 
In'  paid  before  bonds  and  notes:  but  as  they  are  not  matters  of 
record,  of  which  the  executor  or  administrator  is  bound  to  take 
notice,  actual  notice  of  them  must  be  given  by  the  creditor. 
State  v.  Johnson,  7  Ired.,  231. 

'.)(•.  ilc  dormancy  of  a  judgment  does  not  at  all  affect  its  dig- 
nity, in  the  administration  of  assets.     IhiJ. 

91.  A  brought  a  suit  against  the  administrator  of  B,  the  prin- 
cipal, and  C,  the  surety  on  a,  note,  and,  at  tin-  return  term,  en- 
tered  a  nol.  pros,  as  to  the  administrator  of  the  principal,  and 
toek  judgment  against  C  alone;  who,  having  paid  the  debt,  sued 
tlio  administrati  r  of  1'..  his  principal,  but  he,  in  the  mean  time. 
had  disbursed  all  the  assets  in  the  payment  of  debts  of  equal 
dignity  with  that  of  A;  and  it  was  held  that  the  administrator 
in: 1 1  committed  no  dt  castavit  as  to  ( '.  because,  as  surety,  he  had 
no  other  rights  than  A  had  possessed,  and  that  A.  having  relin- 
quished his  lien  upon  the  assets  of  B,  by  discontinuing  his  suit 
38 


594        EXECUTORS  AND  ADMINISTRATORS.— IX. 

against  his  administrator,  the  right  of  the  surety,  as  the  substi- 
tute of  his  creditor,  t<  >  obtain  priority,  could  only  accrue  from 
the  commencement  of  his,  the  surety's,  action  against  the  admin- 
istrator of  B.  GoUruinc  v.  Spurgin,  9  Ircd.,  52.  (See  Rev.  Code, 
ch.  110,  sec.  4.) 

92.  When  an  administrator,  after  a  delay  of  nine  months,  al- 
lowed him  by  the  act,  Rev.  Stat,  eh.  46,  sep.  25,  pleads  to  an 
action  the  want  of  assets,  lie  has  a  right  to  give  in  evidence  a 
judgment  confessed,  prior  to  the  lime  when  the  plea  is  pleaded, 
without  regard  to  the  priority  of  the  time  in  bringing  the  suits. 
Bryan  v.  Miller,  L0  [red.,  12'.)'     (See  Rev.  Code,  ch.  40,  sec.  33.) 

93.  An  administrator  is  protected  by  judgments  rendered 
against  him,  within  the  nine  months  allowed  him  to  plead,  though 
in  suits  commenced  after  that  in  which  he  pleads  them.  Terry 
v.  Vest,  11  Ired.,  65. 

94.  A  surety  to  an  appeal,  by  a  party  who  dies  pending  the 
suit,  has  no  lien  on  his  assets,  until  after  he  has  paid  what,  by 
the  judgment,  lie  was  found  to  he  liable  for  as  surety.  Green 
v.   Williams,  11  Ircd.,  139. 

95.  Upon  the  death  of  an  administrator,  the  duty  of  settling 
up  the  estate  devolves  upon  the  administrator  de  bonis  11011.  The 
representative  of  the  first  administrator  has  nothing  to  do  with 
it,  except  to  account  for  and  deliver  over,  to  the  administrator  de 
bonis  non,  such  assets  as  remain  undisposed  of.  Hence,  creditors 
cannot  sue  him  directly,  nor  have  they  a  right  of  action  on  the 
first  administrator's  bond ;  for  the  bond  does  not  vary,  nor  add 
to,  the  duties  or  liabilities  of  an  administrator,  but  merely  in- 
creases the  security  for  the  performance  of  his  duty.  Fen 
Baxter,  12  Ired.,  64 

96.  A  judgment  obtained  by  a  creditor  against  the  adminis- 
trator debonis  non,  ascertain]  nnt  of  his  debt,  hut  de- 
claring that  he  has  no  assets,  will  not  vary  the  principle,  so  asto 
enable  him  to  sue  on  the  first  administrator's  bond.     Ibid. 

97.  Where,  alter  an  appeal  to  the  supreme  court  by  an  admin- 
istrator, defendant,  he  dies,  ami  there  has  been  anadmini:  tration 
,/,  I  ,  is  non  granted,  if  there  he  no  error,  the  judgment  is.  .that 
there  was  no  error  in  the  original  judgment,  and  that  the  plain- 
,  iff  1:  cover  the  damages  and  costs  against  the  administrator  de 
bonis  non,  to  be  levied  debonis  intestati,  and  also,  against  the 
sureties  for  the  appeal.  If  the  plaintiff  cannot  thus  obtain  sat- 
isfaction, he  must  proceed  either  by  sei.  fa.,  or  action  of  debt,  on 
tlie  judgment  against  the  administrator  de  bonis  non,  in  order  to 
eh.ove  him  therein  with  assets;  for  the  question  of  assets  cannot 
be  put  in  issue  upon  a  sci.fa.  to  revive  a  suit  before  judgment. 
Borden  v.  Thorpe,  13  Ired.',  298. 

98.  It  has  been  the  practice  in  this  state,  when  the  defendant 
dies,  while  a  cause  stands  on  an  issue,  to  allow  his  executor, 
when  brought  in,  to  plead  a  want  of  assets,  but  it  is  a  practice 


EXECUTORS  AND  ADMINISTRATORS.— IX.        595 

tolerated  among  the  profession  for  their  own  convenience,  and 
has  passed  suh  silentio,  but  cannot  be  sustained  if  objected  to. 
Ibid. 

99.  A  a  /.  fa.  against  an  executor,  before  final  judgment,  is 
merely  to  make  the  executor  a  party  to  the  record,  and  though 
the  judgment  be  against  the  executor,  it  is  not  a  judgment  fixing 
him  with  assets;  a  second  sci.  fa.  is  necessary  for  that  purpose, 
and  in  it  he  may  plead  a  want  of  assets,  or  make  any  other  de- 
fence, which  he  might  have  made,  if  sued  on  a  judgment  against 
the  testator.  The  onlyinstance  iawhicha  plea  san  be  i  dmitted, 
is  that  of  release,  or  satisfaction,  since  the  last  continuance. 
which,  iron  necessity,  would  probably  be  received  upon  a  proper 
case  shown,  as,  indeed,  they  might  have  been  pleaded  by  the 
original  defendant.     Ibid. 

100.  In  no  instance  has  the  executor  of  a  defendant  the  right 
to  make  a  personal  di  fence,  exc  ipl  only  to  deny  his  repres  ta- 
tive  character,  which  may  be  summarily  determined  by  the 
court,  or  by  a  collateral  issue.     Ibid. 

101.  If,  on  an  appeal  to  the  supreme  court,  the  judgment  be- 
low be  not  reversed,  the  actual  judgment  here  must  be  for  the 
damages  assessed  de  bonis  intestati,  and  against  the  sureties  for 
the  appeal.     Ibid. 

102.  An  executor  must  have  distinct  notice,  within  a  re 
able  time,  of  a  creditor's  demand  for  funeral  charges,  the  amount 
due,  and  the  articles  furnished,  before  lie   can    be   sued  for  it. 
Ward  v.  Jones,  Busb.,  I'll. 

103.  "Where  the  account  sued  on  was  composed  of  many  ' 

a  part  of  which  were  articles  furnished  for  the  burial,  and  the  hoi 
was  presented  to  the  administrator  for  payment,  i    ,  h: at  the 

fact  of  the  defendant's  having  seen  the  article's  purchased,  and 

iving  known  for  what  purpose,  (though  he  knew  m 
price  charged,)  and  the  further   fact,  that  he  said  "he  would 
havi    paid  it.  if  the  plaintiff  :  count  right," 

furnish  no  evidence  of  such  notice  as  the  law  requires. 

104.  Notes  taken  i  y  an  e  Lto  p  ty  debts, 
are  not  assets  until  they  are  due  and  collected.  As,  wh  n  an 
executor,  ui  lei  ord  r  of  court,  sold  slaves  on  a  credit  of  six 
months,  and  having  been  sued  by  a  i  tookti  I  >  plead 
under  tl  'I  at  the  time  of  ]  I  d,  the  said  o< 
were  no1  due,  nor  any  pari  oi  them  collected,  it  was  held  that 
the  plea  of  "  '  was,  by  these  facts,  sustained.  McKay 
v.  Flowers,  Busb.,  211.     (See  Rev.  Code,  ch.  46,  sec.  33.) 

105.  An  administrator  of  a  d  scea  -  d  sheriff,  who  is  authorized, 
by  a  special  private  act  of  assembly,  to  collect  arrearages  of 
taxes,  is  liable  on  his  administration  bond,  for  the  amounts  called 
for  in  the  tax  lists  of  those  years,  for  which  he  is  thus  authorized 
to  collect;  and  this  responsibility  is  not  varied  by  the  fact  that, 
at  the  time  the  act  was  passed,  the  administrator  was  only  a 


596        EXECUTORS  AND  ADMINISTRATORS.— IX. 

special  one,  and  did  not  become  the  general  administrator  until 
afterwards.     Morton  v.  Aslibee,  1  Jones,  Ml 2. 

106.  Where  such  administrator  dii's  before  his  administration 
is  completed,  his  administrator  is  liable  to  the  administrator  de 
bonis  noti  of  the  deceased  sheriff,  for  the  breaches  of  the  bond  of 
Ins  intestate.      Ibid. 

107.  Where  the  first  administrator  of  the  sheriff  had  been  his 
deputy,  and  had  tax  lists  to  collect,  as  such,  fur  certain  districts, 
and  failed  to  collect  them,  he  was  bound  to  have  made  good 
those  amounts  to  his  intestate,  while  acting  as  his  administrator, 
and  not  having  done  so,  his  administrator  is  liable  for  the  same 
to  the  administrator  de  bonis  non  of  the  sheriff.  And  the  admin- 
istrator of  the  deceased  deputy  cannot  allege  the  inability  of 
the  deputy  fa-  want  of  means,  to  account  to  the  estate  lie  repre- 
sented as  administrator,  without  suggesting  and  proving  such 
inability.     Ibid. 

IDS.  The  administrator  of  one,  who  was  indebted  to  him  on 
bills  of  exchange,  payable  to  him  as  "cashier"  of  a  bank,  lias  a 
right  to  retain  against  creditors  of  no  higher  dignity,  although 
such  bills  were  due  from  the  intestate  as  copartner  in  a  firm, 
and  the  assets  were  of  the  intestate's  individual  property.  White 
v.  Griffin,  2  Jones,  3. 

109.  The  claim  which  a  purchaser  at  execution  sale  has 
against  the  defendant  thereto,  on  account  of  a  defective  title  to 
the  property  sol  ,  is  but  a  simple  contract  debt,  and  an  executor 
who  pays  such  a  claim,  in  preference  to  a  judgment  creditor,  is 
guilty  of  a  devastavit.     Laws  v.  Thompson,  4  Jones,  104. 

1 1( ).  A  purchaser  at  an  execution  sale,  who  gets  a  defective 
title,  has  no  right 'to  take  the  place  of  the  creditor  by  substitution, 
and  thus  to  bring  to  his  aid,  as  against  other  creditors  of  the 
intestate,  the  dignity  of  his  creditor's  debt;  for  equity  never  in- 
terferes against  creditors.     Ibid. 

111.  No  action  can  be  maintained  against  an  executor,  as  ex- 
ecutor, for  money  had  and  received  by  him  after  the  death  of  his 
testator.     Haiti ■_,■/  v.   U'eeler.  4  Jones,  159. 

112.  Where  a  warrant  has  been  brought  against  an  adminis- 
trator for  the  debt  of  his  intestate,  and  the  justice,  before  whom 
it  is  returned,  renders  a  judgment  against  him  individually,  it 
is  error,  for  which  a  recordari,  in  the  nature  of  a  writ  of  error, 
is  the  proper  remedy.     Hare  v.  Parham,  4  Jones  412. 

11.").  The  general  rule,  in  such  a  case,  is  simply  to  reverse  the 
false  judgment;  but  where  it  appears  the  plaintiff  was  entitled 
to  a  judgment  against  the  assets  in  the  hands  of  the  adminis- 
trator, the  supreme  court  will  order  the  case  back  to  the  supe- 
rior court,  that  the  question  of  assets  may  be  tried.     1  'aid. 

114.  A  creditor  cannot  charge  sa  a  devastavit,  in  an  adminis- 
trator, an  act  done  by  his  consent  and  with  his  concurrence. 
Cain  v.  Haivlcins,  5  Jones  192.. 


EXECUTORS  AND  ADMINISTRATORS.— IX.-X      597 

115.  An  action  will  lie  against  an  executor  for  an  injury  done 
by  his  testator;  for  wherever  an  action  could  have  revived 
against  an  =executor,  it  may  be  brought  originally  against  him. 

6  Jones,  60: 

116.  An  inventory  filed  by  an  executor  is  only  prima  facie 
evidence  of  assets  against  him,  and  he  has  the  right  to  rebut  it 
by  proof.     Hoovt  r  v.  MiU<  r,  6  Jones  79. 

117.  An  action  will  not  lie  against  the  executor  oi  an  admin- 
istrator, for  a  demand  against  the  estate  of  the  hitter's  inti 

but  administration  a\  bonis  non  must  be  taken  on  the  estate  of 
such  intestate,  before  it  can  be  reached.     Duke  v.   Fen 
Jones  10. 

118.  It  is  not  necessary  tor  a  creditor  of  an  estate,  to  obtain  a 

igainst  the  administratoi  i   g  an 

inistration  bond  for  the  debt.     /  tri  Jdand  v. 
242. 

119.  if  an  death, 

■t  him  in  th<  sin  settling 

!  ■  ted  te,  and  not 

.  him  as  e.-.  426. 

<!  part- 
ners i  '      ■  :  '  : 
assets  of  his  intestate.  foT  work  which  he,  (the 
administrator,)  had  done  on  the  mill  after  the  death  of  his  in- 
■.  Eiatt,  7  dories  5 
121.  An  action* against  a  person,    "as                 •,"    for  an    act 
or  contract  made,  by  aim  after  the  death  of  his  testator, 
cannot  be  sustained,  by  rejecting  the  words  "  as  executor,"  as 
surplusage;  as  may  be                       the  action  is                party  on 
ission,  and  the  words  uas  executor  "  are  erroneously 
i       302. 
Evidence — Admissions,  declarations   and  acts  of  parties, 
privies,  and  others,  18.)     (Sheriff — Liability  for  escapes.  9.) 

X.       OF  THEIR  LIABILITY  TO  LEGATEES    AND  NEXT  OF  KIN. 

1.  An  action  at  law  will  lie  for  a  legacy,  if  there  be  an  express 
promise  by  the  executor  to  pay  it,  and  he  either  has  i insets  or 
promises  in  consideration  of  forbearance.     McNeil  v.  Q 

Hay.,  153,  | 

2.  [f  an  executor  promise  to  pay  a  legacy,  as  soon  as  he  can 
sell  certain  property,  an  action  at  law  will  lie  upon  such  prom- 
ise.    Ibid. 

3.  The  distributees  of  an  intestate's  estate  may  bring  suit  for 
their  distributive  shares,  against  the  sureties  of  an  administra- 
tor upon  his  bond,  without  any  previous  proceeding  against  the 
administrator,  although  lie  has  made  no  settlement  of  bis  admin- 


598  EXECUTOES  AND  ADMINISTRATORS.— X. 

istration  with  the  court,  nor  filed  an  account  current.      Williams 
v.  Hicks,  1  Murph.,  437.  S.  P.,  Gfmrman  v.  J/<„„,<,  2  Mnrph.,  22. 

4.  Where  slaves  were  lent  to  a  .son-in-law,  and  afterwards  giv- 
en by  will  to  the  children  of  the  son-in-law,  who,  by  his  will,  be- 
queathed them  to  his  wife,  held  that  her  possession  was  not  so 
adverse  to  the  children,  as  to  prevent  the  assent  of  the  executors 
of  their  grandfather  from  vesting  the  legal  title  in  them;  as  it  is 
not  necessary  that  executors  should  have  the  actual  possession 
of  legacies  when  they  assent  to  them.  Spruili  v.  Spruill,  2 
Murph.,  175. 

5.  Where  there  is  a  legacy  for  life  only,  and  no  remainder  is 
limited,  the  assent  of  the  executor  enures  to  tin.'  benefit  of  the 
particular  tenant  only:  and  the  executor  is  entitled  to  the  pos- 
session of  the  chattel  again,  to  perform  the  other  trusts  of  his  of- 
fice.    James  v.  Masters,  '■'>  .Murph.,  110. 

6.  The  tender  of  a  refunding  bond  is  not  a  condition  precedent 
to  a  suit  upon  the  administration  bond,  by  one  of  the  next  of  kin: 
and  this  is  certainly  so.  where  it  appears  that  the  giving  of  a  re- 
funding bond  was  not  (he  obstacle  to  a  settlement  by  the  ad- 
ministrator.    Mayo  v.  Mayo,  2  Hawks*  329. 

7.  The  statute  of  22  ami  23  Charles  II,  givingto  thehusband 
the  whole  of  the  personal  estate  of  his  deceased  wife,  wasonlyin 
affirmance  of  the  common  law.     Hoshins  v.  Miller,  2  Dev:,  360. 

8.  Where  the  same  person  is  administrator,  anil,  also,  guar- 
dian of  the  next  of  kin,  his  returning  an  account  of  his  adminis- 
tration, and  acknowledging  a  balance  due  his  ward,  is  not  a  per- 
formance of  his  administration  bond;  but  it  is  otherwise,  if  the 
money  to  pay  the  balance  is  identified,  and  retained  by  the  guar- 
dian as  the  property  of  his  ward.  Harrisonv.  Ward,  3  Dev., 417. 

9.  Y\  I  i  is  rightful  in  one  capacity,  and  wrongful  in 
another,  it  is  taken  to  be  in  the  first,  until  the  contrary  is  shown. 
Bid. 

10.  Where  an  administrator  procures  himself  to  be  appointed 
guardian  to  the  next  of  kin  of  his  intestate,  but  does  not  return 
an  account  as  guardian,  or  in  any  way  designate  the  property 
of  his  ward,  so  that  it  can  be  identified,  the  sureties  to  the  ad- 
ministration bond  are  not  discharged.  Clancy  v.  Carrington,  3 
Dev.,  52!). 

11.  Courts  of  equity  will  control  the  unreasonable  exercise,  by 
an  executor,  of  a  power  or  discretion,  which  may  affect  the  in- 
teresl  of  another  person,  lint  a  court  of  law  is  bound  by  the 
terms  of  the  will,  or  other  instrument,  creating  the  power  or  dis- 
cretion.    Cloud  v.  Mo/rtin,  1  Dev.  and  Bat,,  397. 

12.  A  court  of  law  will  not  entertain  a  suit  against  an  execu- 
tor, or  an  administrator  with  the  will  annexed,  for  the  non-per- 
formance, or  improper  execution,  of  a  discretionary  power  given 
in  the  will.  Therefore,  where  a  testator  directed  that  his  grand- 
son should  be  "  raised,  taken  care  of  and  educated,  "  "  at  the  di- 


EXECUTORS  AND  ADMINISTRATORS.— X.         509 

rection  and  care"  of  hi*  sun  .Tames,  it  was  Juki  that  au  action 
would  not  lie  on  the  bond  of  the  administrator  with  the  will  an- 
nexed, for  the  expenses  of  such  education,  though  the  son  James 
was  one  of  the  administrators.     Ibid. 

13.  The  clause  in  the  condition  oi  a  bond,  given  by  an  ad- 
ministrator with  the  will  annexed,  which  provides  that  the 
obligor  shall  well  and  truly  deliver,  and  pay  over,  all  the  rest  and 

which  shall  be  found  due  on 
his  account  at  the  close  of  his  administration,  "unto  such  person 
.  i  spectively,  as  the  same  shall  be  due  unto,  pursuant 
to  the  true  intent  and  meaning  of  the  acts  of  the  general  assem- 
bly, in  sue':  i  and  provided,"  is  broken,  both  in  letter 
and  in  spirit,  by  a  refue  ■'■■  d  of  the  administrator  with 
the  will  annexed,  to  pay  leg  Lane  v.  Peoples,  1  Dev. 
and  Bat,  '.). 

1-4.  An  executor  or  administrator  may  I  ant  by 

petition,  or  bill  in  equity,  by  the  legatees  or  next  of  kin.  before 
the  expiration  of  two  years  from  the  time  of  probate  or  adminis- 
tration granted.  The  ad  compels  them  to  settle  within  that 
time,  but  does  not  authorise  them  to*  ut  without 

The  court,  to  whom  the  petition  or  bill  is  presented, 
can  prevent  any  pr  i  injustice  to 

'  :utor  o  or!     Hobbs  v.   Giaige,  1    Lred.,  ^i:'. 

24.) 

15.  iunt  upon  a  petition  or  bill  against  an  executor 
or  adm  charged  w  ith  n  ■ 

he  had  not  collected,  or  whic  aot,  by  reasonable  dili- 

been  abletocolli  et.     As  to  matters,  where  it  was  doubtful 
.■  he  could  collect  or  not,  th  I  e  left  to  a  future 

it,  the  plaintiffs,  in  the  mi  antime,  taking  a  de 
for  what  was  certainly  i 

16.  kVhere  the  a  as  or  administral  |    - 
or  bill  to  account,  sets   forth  a  joint  receipt, 

sioner  is  not  required  to 
re]  hat  i  th  ely.     Ibid. 

17.  It  is  not  a  good  exception  to  a  i  rt,  that 
the  pn                                      b  lee  made  to  a  petition  i 

being  ai  petition  or  bill  Lts<  If. 

18.  Where  one  of  several  joint  legatees  is  n  >t  a  pasty  com- 
plainant in  a  suit  for  the  legacy,  and  no  process  is  served  on  him, 
nor  an  i    m  assignedfor  this  omission,  the  other  legatees 

sustain  their  bill  or  petition.     But  the  supreme  court. 

of.  dismissing  the  petition  or  bill,  will  remandit  To  the 
court  below,  and  direct  the  plaintiil'-s  to  pay  the  costs  of  the 
supreme  court.     Ibid, 

19.  In  an  action  upon  the  bond  of  an  administrator,  appointed 
by  a  court  in  this  state,  he  can  only  be  made  accountable  for  the 
assets  found  within  this  state,  &r  the  administration  granted  in 


600        EXECUTORS  AND  ADMINISTRATORS.— X. 

this  state  gives  no  authority  to  administer  goods  in  another  state 
pr  government.     Governor*?.   Williams,  3  (rod..  152. 

20.  Where  there  was  a  bequest  of  property  to  the  heirsof  S.  W., 
but  thatnone  of  it  should  be  sold,  but  all  kept  until  the  said  heirs 
should  com'-  W.  should  die,  it  m  \  bhat  a  payment 
by  the  executor  to  S.  W.  in  his  lifetime,  though  he  was  poor  and 
required  the  properly  for  the  support  of  his  family,  did 

i  m  iiis  liability  to  the  children  of  S.  W., 
after  the  occurrence  of  the  events  mentioned  in  the  will. 
v.  CoweU,  3  Ired.,  323. 

21.  Where  an  absolute  interest  in  iroperty  is  given, 
with  a  good  i  I  tion  over,  on  a  certain  event,  the 
executor  of  the  first  taker  will  not  be  responsib 

or  next  of  kin,  when  the  propi  ion  the  ha] 

of  the  s]  nt.     Robards  v.  J  I.,  53. 

22.  A  sing! 

by  more  than   one  tors;  and  in 

d   ■ 

claring  the  tria 

:  .  397. 

23.  The  con  I  entertain  - 

which  constitute  the  mass  or  resi         i  lei 

its,  requires  thai 
should  be  so  brought,  as  to  take  all  the  accoun 
the  whole  estate,  by  the  dec  y  be  made  therein.  Amis 

.  2i9. 

24.  Y,  I  ietrator  dies  without  having  fully 

s  of  his  intestate,  an  action  will   not   lie 
o  for  I !;s  share  oi  the  estate  against  the  a 
dministrator,  but  must   be   br  the  ad- 

ministrator  i       bonis  non   of  the   original   intestate.     Si        v. 
Johnston,  8  Ired.,  381. 

25.  Where  assets  have  remained  in  the  ham  ol  a  i  ainis- 
trator  more  than  seven  years,  unclaimed  by  the  next  of  kin,  and 

he     Iministrator  dies,  the  trustees  of  the  university 
cover  in  their  own  name  from  the  representative  of  such  admin- 
The  ai   i  ts  can  only  1"'  recovered   by  an  administrator 
.    n,  who  is  immediately  answerable  over  to  the  tn 
provided  no  claim   be  set  up  on  the  part  of  the  next  of  kin. 
State  v.  Johnston,  8  [red.,  397. 

26.  Where  personal  property  is  left  to  one  for  life,  remainder 
to  others,  and,  after  the  death  of  the  tenant  fur  life,  it  comes  to 
the  possession  of  the  administrator  of  such  tenant,  those  enti- 
tled in  remainder  cannot  sue  the  administrator  by  a  petition  in 
a  court  of  law,  under  the  statute,  Rev.  Stat,,  ch.  64,  sec.  5,  but 
must  proceed  in    equity,  because  no  such   fiduciary  relation,  as 


EXECUTORS  AND  ADMINISTRATORS— X.-XI.      601 

that  contemplated  by  the  statute,  exists  between  the  parties 
Pool  v.  Davis,  Hi  fred.,  310.     (See  Rev.  Code,  ch  64,  sec.  7.) 

21.  The  next  of  kin  cannot  maintain  an  action  on  the  admin- 
istration bond,  after  the  death  of  tl  e  ai  ministrator,  because  he 
:  to  take  into  his  possession  and  distribute  certain  negroes, 
to  which  his  intestate  was  entitled ;  becai  passed 

tor  'It  bonis  rum,  and  are  to  be  by  him  distribu- 
ted.    States.  Britton,   11   [red:,   110,,  S.  P.     State  v.  Moore,  11 

Ii  an  administrator  has  a  r  res  and 

sell  or  Lire  them  out,  if  necessary  to  pay  debts,  yel  if  ii. 

i     ound  to  keep  them : 
tition  lor  partition   with  the  other   next  of  kin,  it 
delivery  of  the  si  i,  and  is  a  disch  h 

;  the  propi  ii  . 

ai  Iministrator  plead  a 
r  bond : 

tate        brown  on  the 

.  ■     .  ed,  in 

a  will,  which 

dministrator,  upon 
•ill  admini  itrator 

to  i  ■  ' 

■  ■  [  of  the  i  ol 

:  a  :tion  and  probate,  won 

ject  hi  ;  for  it,  although  during  such  olel.r 

,  whereby  the  debt  was  lost.    Hartsji 

31.  Where  an  administrator  with  a  will  annexed  died,  having 
in  his  hands  money  arising  from  the  sale  of  land  decreed  to  be 
sold  for  the  p  '  debts,  being  a   Burplus  over  and  a 

!  to  pay  such  debts,  which  money  : 
law  to  persons  to   whom  the  land  was  devised,  it  icax  held-  that 
the  administrator  won  with  the  will  annexed  of  the 

original  testator,  and  not  the  devisees^  was  the  proper  person  to 
i  v.  I '  -  .  8  Jones  111. 

32.  -  by  the   administrator,  lor  the  support   of  his 

ildren  were,  in  the  above  ease,  held  not  to  be 

for  him  in  the  settlement  of  the  estate.     Ibid. 

See  (Evidence — Admissions,  declarations  ami  acts  of  parties, 

Erivies  and'others,  18.)  (Executors  and  Administrators — of  suits 
y  executors  and  administrators,  18.) 

XI.   OF  REFUNDING  BONDS  TAKEN  FROM  LEGATEES  AND  NEXT  OF  KIN. 

1.  The  refunding  bonds,  which  executors  and  administrators 


602  EXECUTOES  AND  ADMINISTRATORS.—  XI.-XIV. 

may  take  from  legatees  and  next  of  kin,  are  taken  solely  for  the 
benefit  of  creditors.  Therefore,  an  executor  or  admistrator,  who 
has  paid  to  a  legatee  or  distributee  more  than  he  was  entitled 
to,  cannot,  for  his  own  use,  recover  the  excess  so  paid,  by  an  ac- 
tion on  the  refunding  bond  given  by  such  legatee  or  next  of  kin. 
State  v.  McAleer,  5  Ired.,  632. 

2.  Where,  after  a  division  of  slaves  among  the  next  of  kin, 
made  under  an  order  of  court,  the  administrator  assented  that 
each  might  take  the  share  allotted  to  him  upon  his  giving  a  re- 
funding bond  therefor,  which  condition  was  not  complied  with, 
it  washeld  that  the  administrator  might  recover  from  one  of  the 
next  of  kin.  who  had  got  possession  of  his  share;  and  that  such 
ion  was  not  adverse,  so  as  to  give  effect  to  the  statute  of 
limitations.     Howell  v.  Johnston,  4  Jones  502. 

See  (Executors  and  Administrators — Ut  their  liability  to  leg- 
atees and  next  of  kin,  (!.) 

XII.       OF  THE. EFFECT  OP     MAKING   A  DEBTOR  EXECUTOR  OR    ADMINISTRATOR. 

1.  If  an  obligee  make  his  will,  and  appoint  one  of  several  of 
obligors  his  executor,  it  is  a  release  or  extinguishment  of  the 
debt,  as  to  all  the  obligors;  bat  where  the  court  appoints  one  of 
the  obligors  to  be  the  administrator  of  the  obli  ■  ■  ;;  only  sus- 
|  the  debt  on  the  bond,  during  the  administration   of  that 

idmini  itrator,  and  does  not  release  or  extinguish  it.  Ferebee  v. 
Doxey,  G  Ired.,  448. 

XIII.       REMEDY  FOR  THE  SURETIES,  WHO  MAY  BE  IN  DANGER  OF  LOSS. 

1.  A  county  court  has  power  to  take  a  new  bond  from  an  ad- 
ministrator or  executor,  forth  I  if  his  former  sureties,  un: 
der  the  act,  Rev.  Stat.,  eh.  46,  see.  30,  although  no  petition  has 
ad  verified  on  oath,  and  no  summons  has  been  issued 
t  the  administrator  or  executor,  the  latter  being  present 
and  not  requiring  these  forms  to  be  observed.  Governor  v.  Gfow- 
an,  3  Ired.,  342. 

XIV.       OF  THEIR  CLAIM  To,  OR  LIABILITY  FOR,  COSTS. 

1.  Administrators  are  not  personally  Habile  for  costs,  incurred 
in  a  suit  brought  by  their  intestate,  and  prosecuted  by  them  af- 
ter his  death,  they  having  no  assets.  Arrfaigton  v.  Coleman,  1 
Murph.,  102. 

2.  When  executors  sue  in  aider  droit,  they  are  not  liable  for 
costs  de  bonis  propms.  When  they  fail  in  the  suit,  having  no 
assets,  costs  are  lost,  unless  they  give  bond  and  security  for  the 
costs,  and  then  the  sureties  arediable.     But  -when  they  sue  in 


EXECUTOES  AND  ADMINISTRATORS.— IV.        603 

their  own  right,  they  are  liable  for  costs,  though  they  name 
themselves  as  executors.     Ibid. 

3.  Where  an  executor  appeals  from  the  judgment  of  the  coun- 

rt,  and  gives  bond  with  security  for  the  appeal,  the  bond 
is  binding,  and.  on  a  sci.  /a.  upon  it.  judgment  may  be  entered 
for  the  debt  and  costs.     Hostler  v.  Smith,  1  Murph.,  103. 

4.  An  executor,  who  had  established  a  will,  attested  by  one 
witness  only,  as  a  will  both  of  realty  and  personalty,  but,  upon 
an  appeal,  established  it  as  a  will  of  personalty  only  in  the  supe- 
rior court,  was  ordered  to  pay  costs  for  his  folly,  in  attempting  to 
establish  such  a  will  as  one  of  realty.  Warren  v.  High,  1  Murph., 
436. 

5.  Whenever  an  administrator  establishes  the  plea  of  "  fully 
administered,"  he  is  entitled  to  judgment  of  execution  for  his 
costs  against  the  plaintiff,  immediately.  Wellborn  v.  Gordon,  1 
Murph., 

6.  A  judgment  quando  is  one  in  favor  of  the  defendant,  who  is 
therefore  entitled  to  his  costs.     Battle  v.  BorJce,  1  Dev.,  228. 

7.  Upon  .  the  defendant  is  allowed  the  costs 

1  in  an  action,  brought  against  him  in  his  own  right,  for 
ersion  of  chattels,  which  he  bona  fide  thought  were  of  the 
of  his  intestate.     Leigh  v.  Lockwood,  i  Dev.,  ."»77. 

8.  Where,  uponi  'ministravit,  the  defendant  was 
fixed  ,.                   ,  as   to  part  of  the  demand  of  the  plaintiff,  the 

ers  his  costs.     Executors,  when  they  are  defendants, 
have  generally  no  privileges  as  to  costs,  and  are  subjected  to 
ea    to  the  whole  action  is  found  in  their 
favor.     7\7  d,  1  Dev.,  581. 

9.  Where  the  guardian  of  an  infant  distributee  sued  the  ad- 
minis;  rator  <  if  the  estate,  the  very  day  he  was  appointed  guardian, 
ami  without  any  demand  upon  the  administrator,  who  was  guilf  y 
of  no  default,  but  promptly  rendered  an  account,  which  was  G  iund 
to  b  corn  ct,  it  was  held  that  the  guardian,  ami  not  tin/  admin- 
istr'af    i'   should  pay  the  costs.      Griffith  v.  Byrd,  2  Ired.,  72. 

10.  One  who  sues  as  administrator,  or  executor,  is  not  liable 
for  costs  ,/,  bonis  propriis,  if  he  tail  in  his  suit.  Collins^.  Boberts 
6  Ired.,  201. 

11.  Where  an  executor  arrests  a  defendant  on  a  ca.  sa.,  sued 
out  on  a  judgment  obtained  by  Ins  testator,  and  afterwards  dies, 
and  the  pro,  ro dings  in  the  ca.  sa.  are  discontinued,  and  then 
administration  dc  bonis  non,  with  the  will  annexed,  is  granted, 
this  administrator  is  not  liable,  in  any  way,  for  the  costs  of  the 
proceedings  on  the  ca.  sa.    Hampton  v.  Cooper,  11  Ired.,  580. 


601       EXECUTORS  AND  ADMINISTRATORS.— XV. 

XV.       OF    THE    COMPENSATION,    TO    WHICH    EXECUTORS  AND    ADMINISTRATORS 
ARE    ENTITLED. 

1.  Ail  administrator  is  not  entitled  to  claim  any  thing-  for  loss 
of  time  and  personal  services,  though  lie  will  lie  allowed  his  ne- 
cessary expenditures.  Schaw  v.  Schaw,  Tay.  125,  (76.)  S.  C.  2 
Hay.,  104,  (265.) 

■  2.  The  office  of  an  executor  or  administrator  is  not  intended 
to  be  one  of  profit,  and  nothing  more  than  a  bare  compensation 
can  be  allowed.  It  is  to  be  proportioned  to  the  care  and  atten- 
tion bestowed  in  each  particular  case,  and,  at  all  events,  is  not 
to  exceed  fh  .  on  each  side  of  the  account.     Potter  v. 

Stowe,  2  Hawks,  30. 

3.  Payments  of  portions  of  the  next  of  kin,  whether  before,  or 
at  the  close  of  tin  'ation,  are  not  to  be  considi 
expendi                 n  which  a  commission  can  be  allowed.     Ibid. 

4.  A'  cannot  retain  his  ainst  a  credi- 
tor or  a   legal    i,  until  they  have   been   allowed  by  the  county 

or  in  a  suit  for  the  i  t1  of  his  accounts;  henci 

by  a  jury  upon  the  tri  if  fully 

administered.     Hodges  v.  An  stron  .  3  Dev.  253. 

5.  The  jury  cannot  allow  commissions  to  an  <  ithout 

of  the  count]  oti  y  that 

this  order  should  bo  made,  before  the  commencement  of  the  suit 
against  the  executor,     hynch  v.  Johnson,  11  Ired,.  22-1. 

6.  In  a  suit  by  legatees  or  distributees  against  an  executor  or 
administrator,  the  supreme  court  lias  the  power  to  review-the 
decision  of  the  court  below,  in  the  allowance  of  commissions: 
and  this  power  may  be  exercised,  not  only  where  the  allowance 
has  been  made  upon  a  wrong  principle,  as  in  considering  a  re- 
tainer or  a  delivery  over  of  slaves  a.  disbursement,  but  also 
when  the  commissions  allowed  below  are,  clearly,  either  inade- 
quate or  excessive.     Shepard  v.  Parker,  13  Ired.,  103. 

7.  Where  the  exercise  of  discretion  is  in  reference  to  a  raattei 
arising  collaterally,  and  which  does  not  present  itself  as  a  ques- 

;/,,"  cause,  the  decision  in  the  court  below  is  conclusive,  as 
in  the  case  of  amendments,  &c;  but  where  the  discretion  is  ex- 
ercised in  reference  to  a  question  in  the  cause,  the  appeal,  bring- 
ing up  the  whole  case,  necessarily  brings  that  up;  and  the 
allowance  of  commissions  to  executors  and  administrators  is,  in 
every  case,  a  question  in  l/ic  cause.     Ib'ul. 

8.  Commissions  may  be  allowed  on  a  note  due  the  testator  or 
intestate,  delivered  over  as  a  payment  in  cash,  by  the  executor 
or  administrator,  to  a  legatee  or  distributee.     Ibid. 


EX  POST  FACTO  LAW.— EXTORTION,  ETC.        605 


EX  POST  FACTO  LAW. 

See  (Constitution — Construction  of  various  clauses  of  the  con- 
stitution, 5-25-26.) 


EXTORTION. 

1.  It  is  extortion  in  a  clerk  of  the  county  court  to  take  eight 
shillings  for  a  guardian  1  mi  id.  although  he  was  entitled  to  six 
shillings  for  it,  and  two  shillings  for  efrery  order  foreign  to  a 
pause  in  court.     Stale  v.  Dickens,  1  Hay.,  406.  (468.) 

2.  It  is  no  excuse  for  an  officer,  who  takes  more  than  his  legal 
fee,  that  he  did  it  through  mistake  of  the  law,  or  under  improper 
advice.     Ibid. 

^v>-  (Indictment — Form  ami  matters  relating  thereto,  4.) 
(Indictment — Of  the  trial,  verdict  and  judgment,  12.) 


FALSE  TOKEN. 

See  (Indictment — When  an  indictment  will  lie,  25-79-80.') 
(Indictment — Form  and  matters  relating  thereto,  50-51-144- 
160-161.) 


FACTORS. 

See  (Agent   and   Principal — Factors.)      (Agent  and   Princi- 
pal— Of  the  rights  of  an  agent  as  against  third  persons,  1-2.) 


606  FEES.— FELONS.— FENCES. 


FEES. 

See  (Salaries  and  Fees.)  (Costs — What  costs  to  be  taxed,  1- 
2-3-9-13.)  (Guardian  and  Ward — Of  the  liability  of  guardians 
and  their  sureties,  6.)  (Jury — Liability  of  jurors  for  non-at- 
tendance.) (Recognizance,  13.)  (Militia,  2.)  (Sheriff — Compen- 
sation to  sheriffs.) 


FELONY. 

1.  An  intent  to  commit  a  felonious  act,  where  the  intent  is 
only  a  misdemeanor,  merges  in  the  felony,  if  the  act  be  commit- 
ted, but  not  if  the  intent  alone  is  a  felony  of  the  same  grade 
with  the  act  itself;  and  the  prisoner  may  be  convicted  of  either, 
upon  any  competent  testimony,  that  satisfies  the  jury  of  his 
guilt  of  the  particular  offence  charged.  State  v.  Jesse.  ;.i  Dev. 
and  Da1 


FENCES. 

1.  Upon  an  indictment  under  the  act  relating  to  fences,  it  is 

the  province  of  the  court,  where  the  jury  have  ascertained  tin 
facts,  to  pronounce  whether  these  facts  show  that  the  fence  was 
such  an  one,  as  is  required  by  the  statute,  or  whether  the  naviga- 
ble stream,  water  course,  ic.  wis  sufficient  in  lieu  of  the  fence. 
States. Lamb,  8  Ired.,  229.  (See  Rev.  Code,  ch.  34,  sec.  41,  and 
eh.  48.  sec.  1.) 

2.  A  defendant  may  be  indicted  and  convicted  under  the  ad 
of  1846,  forbidding  the  removal  of  fences,  &c,  if  it  appear  that 
the  ground,  which  the  fence  surrounds,  was  in  a  course  of  prepa- 
ration for  making  a  crop,  or  'used  in  the  course,  of  husbandry, 
though  no  crop  was  actually  planted  or  growing  on  it,  at  the 
time  of  such  removal.  State  v.  Alien,  13  ired.,  36.  (See  Rev. 
Code,  ch.  34,  sec.  103.) 

3.  The  act  of  1846,  ch.  70,  forbidding  the  removal  of  fences, 
&c,  does  not  extend  to  persons  in  the  rightful  possession  of  the 
premises,  as,  for  instance,  quasi  tenants,  occupying  the  same  by 
the  consent  of  the  owner.     Hence,  where  A  had  dower  in  land 


FENCES.— FERRY  AND  TOLL  BRIDGE.  607 

adjoining  the  land  of  B,  and  one  of  the  lines  of  the  said  dower 
land  ran  through  a  held,  a  part  of  which  was  the  land  of  IS,  and 
which  her  husband,  during  his  life,  and  she,  after  his  death,  had 
cultivated  with  the  consent  of  B,  and  she  had  the  fence  on  B's 
part  removed  to  her  own  land,  it  was  Held  that  such  removal 
was  not  indictable  under  the  act  of  18413.  State  v.  Williams^ 
Lusk.  197. 

4.  Proceedings  under  the' act  concerning  fences,  against  the  oc- 
cupants of  premises  insufficiently  fenced,  must  strictly  pursue  the 
act.  The  report  of  the  freeholders,  in  such  a  proceeding,  should 
only  embrace  damages  for  the  particular  injury  complained  of 
in  i In-  warrant,  and  the  judgment  of  the  justice  should  be  for 
such  damages  only.  Bailey  v.  Bryan,  3  Jones,  357.  (See  Rev. 
Code,  eh.  48,  seen.  2  and  3.) 

5.  It  is  not  indictable  for  one'  to  remove  a  fence  from  his  own 
land,  which  had  been  unlawfully  put  there  by  another,  although 
it  partially  enclosed  a  cultivated  held  belonging  to  the  other 
State  v.  HeadricJc,  3  Jones,  375. 

6.  In  order  to  subject  a  person  to  the.  penalties  of  the  -set  oi 
1846,  lor  removing  a  fence,  he  must  be  guilty  of  a  trespass.  Ibid. 

7.  A  planter  who  has  not  a  fence,  nor  any  navigable  or  deep 
water  to  serve  instead  thereof,  about  his  field,  while  in  cultiva- 

cannot  recover  for  a  trespass  committed  by  cattle,  1 
or  other  livestock,  on  such  field.     Jones  v.  WHtherspoon,  7  Jones, 
5S5. 

8.  Vfhere  a  person  removes  a  fence  from  land,  of  which  he  has 
neither  the  possession,  nor  the  right  of  possession,  he  cannot. 
upon  an  indictment  for  the  offence,  under  the  Rev.  Code,  eh.  34. 

!.  raise  a  question  as  to  a  right  of  entry,  nor  is  it  any  de- 
fence- to  him,  that  he  did  the  act  to  bring  on  a  civil  suit,  in  order 
e  the  title  tried.     Statt  v.  (  raham,  8  -ion,.:.  397. 

te  and  other  live  stock,  2—4—5-6-7.)  (Costs — In  civil 
pn  iceedin  ge  ;  when  plaintiff  pays  costs.  7. )  (Indictment — When 
an  indictment  will  lie,  51.)  (Evidence — In  criminal  proceedings 
and  ;.  -21.) 


FERRY  AND  TOLL  BRIDGE. 

1.  Whether  the  county  court,  after  establishing  one  ferry  at  a 
particular  place,  has  aright  to  establish  another  at  the  same 
place,  or  so  near  it  as  to  draw  awav  the  profits,  q were.  Anony 
mous,  1  Hay.,  457,  (526.) 


608  FEEEY  AND  TOLL  BRIDGE. 

2.  The  county  court  may  grant  to  a  man  the  privilege  of  erect- 
ing and  beepinga  terry,  though  hedo  not  own  the  land  on  either 
side  of  the  river  or  creek,  over  which  the  ferry  is  established. 
Banner  v.  Dowdy,  1  Murph.,  279.  (Overruled,  see  Pipkin  v. 
Wynns,  2  Dev.,  402.) 

o.  Individual  interest  ought  not  to  be  sacrificed,  but  for  the 
purpose  of  advancing  a  clear  and  unequivocal  public  benefit. 
Therefore,  where  an  ancient  ferry  has  been  established,  and  duly 
kept  up,  the  court  will  not  erect  a  new  one  so  as  to  injure  the 
old,  unless  it  be  evident  that  the  public  sustains  an  inconvenience 
from  the  want  of  it.     Beardv.  Low/,  2  Car.  L.  E.,  Hi).  (167.) 

4.  The  owner  of  an  old  established  ferry  hath  aright  of  action 
against  anyone  who  keeps  a  free  ferry,  or  one  fur  which  he 
charges  toll,  if  he  have  no  authority  from  the  county  court  to  do 
80,  and  thereby  injury  be  caused  to  the  old  ferry;  and  it  matters 
not  whether  the  count,  in  the  declaration,  charge  profit  marie  by 
the  defendant,  or  loss  caused  to  the  plaintiff,  as  a  general  verdict 
upon  counts,  charging  each  way,  may  be  sustained.  Long  v. 
Beard,  3  Murph,,  57. 

5.  The  exclusive  right  of  keeping  a  ferry,  and  taking  tolls,  be- 
longs to  the  state;  but  she  can  giant  the  franchise  to  none  but 
the  owner  of  the  adjacent  lands,  unless  he  refuses  to  exercise  it, 
when  it  may  be  granted  to  another  person;  and,  in  the  latter 
case,  compensation  must  be  made  to  the  owner  of  the  fee  for  the 
right  to  use  the  soil  for  that  purpose,  although  there  is  a  public 
road  leading  to  the  river  on  both  sides.  Pipkin  v.  Wynns,  '2 
Dev.,  402. 

6.  An  order  of  the  county  court,  granting  to  one  tenant  in 
common,  the  exclusive  right  of  keeping  a  ferry  and  receiving 
tolls,  without  default  in  the  others,  and  without  notice  to  them, 
is  void.     Ibid. 

7.  Although  the  county  courts,  in  authorizing  the  erection  of 
toll  bridges,  are  required  to  laij  uniform  tolls,  yet  the  owner  of 
a  toll  bridge  is  not  obliged  to  coUect  the  same  toll  from  every  per- 
son. He  may  levy  what  he  chooses  from  each  person,  keeping 
within  the  rates  prescribed  by  the  court,  or  relinquish  it  alto- 
gether.     Saunders  v.  Hathaway,  3  Ifed.,  4<>2. 

8.  The  county  court  of  Perquimans  has  the  same  power,  under 
the  private  act  of  1838,  ch.  11,  in  relation  to  the  toll  bridge  over 
Perquimans  river,  at  the  town  of  Hertford,  which,  by  that  act, 
the  justices  were  authorized  to  purchase.     IbiiJ. 

9.  A  conveyance  of  a  tract  of  land,  to  which  a  ferry  has  al- 
ways been  appurtenant,  will  carry  the  ferry  as  an  incident, 
though  it  may  not  be  mentioned  in  the  deed.  State  v.  WiUis, 
Bust).,  223. 

10.  A  franchise  granted  in  1706  to  a  person,  and  his  heirs  and 
assigns,  to  erect  and  keep  up  a  toll  bridge  over  a  river,  and  for- 
bidding the  erection  of  any  other  bridge,  or  a  ferry,,  within  six 


FERRY  AND  TOLL  BRIDGE:  609 

miles,  and  imposing  a  penalty  of  twenty  shillings  for  every  pas- 
b  snger  "  si  i  o«rer^'  the  river  in  violation  of  the  act  granting  the 
franchise,  is  not  violated  by  a  charter  granted  to  a  railroad  com- 
pany, to  erect  a  bridge  across  the  same  stream,  within  six  miles 
of  the  toll  bridge,  and  giving  to  such  railroad  company  the  pow- 
er to  charge  tolls,  for  carrying  passengers  along  their  road  and 
across  the  river.  McRee  v.  Wilmington  and  Rahiqh  Railroad 
Company,  -  Jones,  186. 

11.  The  county  courts  have  no  power  conferred  on  them  by 
law  to  build  bridges  over  navigable  streams,  without  requiring 
draws  to  be  made,  so  as  to  admit  the  passage  of  boats  and  other 
craft  navigating  such  streams.     State  v.  Dibble,  4  Jones,  107. 

12.  The  right  of  a  ferryman  to  his  toll  is  by  the  common  law. 
an  I  every  subtraction  from  bis  profits,  by  carrying  his  custom- 
ers over  the  same  stream,  whether  for  payor  not,  is  an  injury 
for  which  he  may  recover  damages.  Taylor  v.  Wilmington  and 
Jit, i  -.'.  ster  Railroad  Company,  1  Jones,  '11',. 

13.  The  custom  :rs  of  a  ferry  are  those  wishing  to  go  along  the 
highway,  el'  which  the  ferry  constitutes  a  part,  and  whom  the 
ferryman  would  lie  bound  to  transport,  on  being  called  on  by 
ih  in.  audi)  ;  si  ch  persons  as  wish  to  go  from  one  of  the  ferry 
landings  to  some  point  out  of  the  highway.     Ibid. 

11.  Th  .    Revised  (ode,  ch.   101,  sec.   30,   recognizes  the 

]  law  rem  sdy,  and  further  givesa  penalty  of  two  dollars, 
for  every  transportation  of  a  passenger,  &c,  within  ten  miles  of 
an  established  ferry,  if  done  for  pay.     Ibid. 

15.  The  object  of  the  private  acts  in  favor  of  William  Dry, 
passed  in  1764,  and  of  Benjamin  Smith,  in  1784,  was  to  effect  a 
communication  between  the  towns  of  Wilmington  and  Bruns- 
wick, by  means  of  two  ferries  and  a  road  across  Eagle's  island 
between  them;  and  the  customers  of  these  ferries  would  he  only- 
those  designing  to  travel  along  this  highway,  or  a  part  of  it,  and 
would  not  include  a  person  designingto  pass  from  one  of  the 
ferry  Ian. lings  to  a  point  on  the  island  not  on  the  highway. 
Ibid.  r 

1C>.  The  Revised  Code,  ch*.  101,  sec.  2.8",  by  a  proper  construc- 
tion, r  |  i  res  of  the  owner  of  a  toll  bride,  not  only  to  erect  and 
keep  in  repair  a  draw  sufficient  for  the  purposes  of  a  free  navi- 
gation of  the  stream,  but  also  to  provide  the  means  for  raising 
it,  and  to  have  ii  raised  whenever  steamboats,  or  other  vessels. 
are  p  tssing  it.     Davis  v.  Jerkins,  5  Jones  290. 

17.  Where  a  ferryman  received  an  unusual  number  of  horses 
and  mules,  winch  were  mostly  unconfined,  upon  his  ferry  boat, 
which  was  not  provided  with  guards,  and  which  had  a  spike 
five  inches  long  sticking  perpendicularly  in  the  gunwale,  and 
winch  was  not  necessary  in  working  the  boat,  it  was  heldtohe 
gross  negligence,  and  that  he  was  liable  for  the  loss  of  a  horse 
killed  by  falling  on  the  spike,  although  the  owner  had  agreed. 
39 


610  FERRY  AND  TOLL  BRIDGE.— FISHERY. 

to  take  upon  himself  the  risk  arising-  from  the  excess  of  num- 
bers.    Wilson  v.  ShulHn,  6  Jones  375. 

18.  Whether  a  ferryman,  as  a  common  carrier,  can  make  a 
valid  agreement  with  a  traveller  to  lessen  his  common  law  lia- 
bility, quaere.     Ibid. 

See  (Highway, -7.)  (Landlord  and  Tenant,  21.)  (Rivers"  and 
creeks,  11) 


FISHERY. 

1.  No  person  has  a  several  or  exclusive  right  of  fishery, 

of  the  navigable  wati  rs  in  this  state.  Collins  v.  Benbury,  3  lied'.. 
277. 

2.  No  person  can  be  entitled  to  a  several  fishery,  or  the  exclu- 
sive right  of  fishery,  in   any  navigable  water,  unless  en  i  h  right 

<  rived  from  an  express  grant  by  the  sovereign  power,  or 
perhaps,  by  such  a  length  and  kind  of  possession,  as  will  cause  a 
presumption  of  such  grant  to  arise.  Collini  v.  Benburn,  5  (red., 
118. 

.").  The  mere  circumstance  of  fishing  the  waters  at  any  p 
lar   place,  no  matter  for  how  long  a  time,  raises  no  presumption 
of  such  a  grant,  because  the  ,  fishing  ,  prima 

facie,  only  a  right,  which   belongs  to  him  in   ci  rith   .-.: 

others.       /   id. 

4.  Where,  in  a  lease  for  a  fishery,  it  is  stipulated  that  the 
I      or,  as  a  consideration  for  the  lea  entitled  to 

offal :  the  less*  es  may  pu1 
offal,  there 

be  cut,  and  no  general  custom  pri  .  up  at 

such  fisheries  were  usually  cut.      i- 

.r>.  Nothinj        i  .■  and  is 

(  (  l)f  Met  d  i  r  :  old  for  that  puipi  /  '</. 

6.  ^.  contrai  I  svifh  B,  a  fisherman,  thai  the  former  would 
pay  him  a i  i  I  /years. 

e  offal  of  the  fishery,  and   then    i1    was  i  '    that  .A 

should  havedhe  oft    I  as  long  as  tin  mtinued;  and 

it  was  1  eh!  that,  by^o  proper  coi  tri  rti<  i  of  the  contract,  could 
A  be  entitled,  alter  the  expiration  of  the  said  |  i  riod,  and  after 
the  death  of  1!,  and  the  sale  of  the  premises  for  division,  to  de- 
mand damages  for  the  non-delivery  of  the  offal.  Capehart  v. 
Jones,  8  Ired.,  383. 

7.  The  right  of  fishing  in  a  navigable  river  is  subordinate  to 
the  right  of  navigation.  The  owner  of  a  boat,  on  such  a  river, 
has  a  right  to  go  to  the  bank,  when  and  where  it  is  necessary  to 
do  so,  and  is  not  liable  for  damages  done  to  seins  drawn  across 


FISHERY.— FIXTURES.— FORCIBLY  ENTRY,  ETC.  611 

the  way,  if  the  injury  be  done    without  malice   or  wantonness. 
'.  Keeling,  1  Jones,  299. 
s   3  (Rivers  and  creeks,  2-10.) 


FIXTURES. 

1.  Ere  stions  mad  •  by  a  lessee  for  years,  foi    the  better  enjoy- 
ment i  b me  pari  ofthi   realty;  but  if  made  for  the 

exercise  of  a  trade,  or  lor  the  mixed  purpose  of  trade  and  agri- 
cultui  the  t>  nant,  and  may  be  removed  by  him 

during  the    ti    in,  or  af     'its         >ir;      i  i   and,  in  the  latter  case, 

int  will  be  a  tresp  isser,  but  only  as  to  his  i  ntry.     P<  mbt  r- 
ton  v.  King,  2  Dev,  ".7i:. 

2.  Between  the  truant  and  Ids  creditors,  a  fixture,  (as  in  the 

removed  withoutinjury 
to  the  premis  -.  is,  until  severed,  a  pari  of  the  realty;  therefore, 
by  a  constable  is  a  nullity,  and  a  levy  by  a  sheriff  is 
as  will   give  him  a   special  property  in  it. 
Ibid. 
'■'<■  \^  i  ighl  1  i  s  sver  a    fixture  from  the 

d,  until  that  ri  :!>!  be  exercised  by  him,  or  an  officer  hav- 
ing a  i    •  .  icution  against  him,  the  thing  is  merged  in  the  soil. 

E     .1     lie  ten         him         befor       ve se,  coul  ;    nol  bri 

tinue.     Although  the  law  may  confer  upon  him  the   po       ■  to 
re-co  the  fixture  into  a  personal  chattel,  until  the  power 

,     :  !      !  ■      |  |  ' 

■   brandy,  and  a   large  copper  ket- 
:     ling  food  for  hogs,  incased  in  brick  and  mortar 
I  pass  with  1  he  land  sold  to  a  pur- 
.  Law,  337. 

but  uot   nailed  to  the  sleepers,  as 

gin  hou  I   used  to  sp     id         ;  cotton 

e  land.      It  would  In-  oth- 

erwi    -  ■    r.  ly  laid  th  :re  in  piL  j  I  ir  s;  fe  keep- 

lot  to  be  used  with  the  hou 


FORCIBLE  ENTRY  AND  DETAINER. 

1.  An  indictment  for  aforcible  entry  and  Retainer,  upon  the 
English  statute  of  21,  Jac.  1,  must  specify  the  kind  of  term,  from 


012  FORCIBLE  ENTEY  AND  DETAINEE. 

which  the  party  is  expelled,  to  authorize  a  writ  of  restitution; 
and  the  term  must  be  unexpired  at  the  time  of  the  trial.  State 
v.  Butler,  Conf.  Rep.,  331,  (414.)  S.  C,  Tay.,  262,  (115.)  (See 
Eov.  Code.  ch.  49,  sec.  5.) 

2.  The  proceedings  in  an  inquisition  of  forcible  detainer  being 
ot  a  civil  nature,  the  court  will  grant  a  new  trial,  if  the  verdict 
be  contrary  to  the  evidence.     Adams  v.  Robeson,  1  Murph.,  392. 

3.  Neither  by  common  law  nor  by  statute  ran  an  indictment 
for  a  forcible  detainer  be  maintained,  where  the  entry  is  both 
peaceable  and  lawful.     States.  Johnson,  1  Dev.  and  Bat.,  324. 

4.  The  entry,  to  authorize  summary  proceedings  under  the 
statute  of  8,  Henry  VI,  must  be  an  unlawful  entry,  followed  by 
a  forcible  detainer,  and  so  stated  in  the  inquisition,  or  it  will  be 
(plashed.     Ibid.     (See  Rev.  Code,  ch.  49.) 

5.  Although  an  action  cannot  be  maintained  for  the  mere  in- 
jury to  the  hens':  or  land,  against  one  who  has  a  right  of  entry. 
for  entering  by  force,  yet  he  may  be  indicted  for  the  forcible  en- 
try, on  account  oi  the  breach  ofthe  peace.     Ibid. 

'(>.  A  purchas  >r  of  land  under  execution  may  enter  peaceably, 
or  even  break  (pen  the  enter  deer  of  a  house  and  retain  posses- 
sion, alt  la  nigh  seme  of  the  last  tenant's  goods  remain  on  the 
premises.     Ibid. 

7.  An  indictment  for  a  forcible  trespass  in  entering  a  man's 
dwelling  house,  which  dees  not  charge  an  expulsion  from  the 
house,  or  a  withholding  ofthe  possession  thereof  up  to  the  find- 
ing of  the  indictment,  nor  set  forth  the  interest  of  the  prosecu- 
tor, will  not,  in  ease  ol  conviction,  warrant  a  writ  of  restitution. 
State  v.  Bennett,  4  Dev.  and  Bat,  43. 

8.  In  an  indictment  for  a  forcible  entry  into  a  dwelling  house, 
it  is  not  necessary  to  charge,  or  to  prove,  that  tin:  proprietor  was 
in  the  house,  or  present,  at  the  time  ofthe  violent  dispossession. 
State  v.  Fort,  4  Dev.  and  Bat.,  192. 

9.  Where  the  proprietor  of  a  school  employed  a  person  as  a 
steward  and  servant  in  the  establishment,  and  assigned  for  his 
lodging  rooms  a  house  situated  within  the  curtilage,  but  not 
connected  with  the  dwelling  house  ofthe  proprietor  by  any 
common  roof  or  covering,  and  for  which  lodging  rooms  the 
steward  paid  no  rent,  it  nut*  held  that  the  bouse  occupied  by  the 
steward  was  not  in  law  his  dwelling  house,  but  was  the  dwelling 
house  oi  the  proprietor  of  tin-  school,  and  that  no  indictment 
would  lie  against  the  proprietor  for  an  entry  and  expulsion  of 
the  steward  from  such  house,  provided  there  was  no  injury  to 
his  person  or  breach  of  the  peace.  State  v.  Curtis,  4  Dev.  and 
Bat.,  222. 

10.  The  occupation  of  a  servant  is  not  suo  jure,  but  as  a  ser- 
vant and  representing  his  master;  and,  therefore,  it  is  the  oc- 
cupation of  the  proprietor  himself.  But  there  may  be  eases,  in 
which  the  master  lets  to   his  servant  a   tenement  or  part  of  his 


FORCIBLE  ENTRY  AND  DETAINER.   '  613 

premises  on  rent,  in  which  the  house  and  possession  would  pro- 
perly be  laid  as  those  of  the  servant.  And  even  where  there  is 
no  stipulation  for  rent,  yet  the  premises  occupied  by  the  servant 
may  be  so  far  removed  and  distinct  from  those  in  the  personal 

| ion  of  the  master,  that  they  may  be  deemed  arid  stated 

to  be  in  the  possession  of  the  servant,  in  an  indictment,  for  in- 
stance, for  burglary.  It  would  seem,  from  some  adjudications, 
that  in  this  last  ease  it  may  be  laid  either  way.  But  these  cases 
are  to  be  regarded  as  exceptions;  Founded  on  particular  circum- 
stances:    Ibid. 

11.  When  an  overseerin  this  State  is  placed  on  a  plantation,  he 
is  net  put  into  possession  as  against  hisemployer;  but  the  latter 
may.  it'  he  think  proper,  turn  him  off  and  evict  him  from  the 
upies:  and  tie-  redress  of  the  overseer  is  by  action 
on  the  contract  of  the  employer,  and  not  by  holding  over  that 
which  was  never  in  his  possession  for  an  instant,  but  as  the  ser- 
vant and  agent  oi  his  employer.     Ibid. 

li'.  In  an  inquisition  and  proceedings  had  before  justices,  un- 
der our  statute  of  "forcible  entry  and  detainer, "  if  the  verdict  of 
the  jury  set  forth  that  "the  relator  was  possessed  as  tenant  for 
years  of  AB,"  that  is  sufficient  without  specifying  what  the 
term  is.     SherriU  v.  Nations,  1  Ired.,  325.    (See  Rev.  (.'ode.  eh.  49., 

13.  An  objection  to  an  inquisition  for  forcible  entry  and  de- 
tainer, that  the  relator  has  elected  to  proceed  by  indictment,  is 
of  no  avail,  as  our  statute  does  not  give  the  justices  any  power 
to  fine.     Ibid. 

14.  When  the  proceedings  on  an  inquisition  of  forcible  entry 
and  detainer,  before  justices,  are  brought  up  by  certiorai  to  the 

t  court,  that  court  has  no  right  to  order  a  traverse 
(o  be  tried  before  it.  as  the  traverst  either  has  been  tried,  or 
might  have-  been  tried  before  the  jury  required  to  be  summoned 
by  the  justices  below,  and  no  appeal  is  allowed  by  statute,  the 
remedy  being  a  summary  one.     Ibid. 

15.  If  the  justices  were  guilty  of  misconduct  in  the  trial  be- 
low, either  by  receiving  improper  testimony  or  rejecting  prop- 
er testimony,  or  otherwise,  the  superior  court  can  correct  this 
misconduct,  but  the  affidavits  to  obtain  a  certiorari  must  state 
explicitly  the  facts,  upon  which  the  interference  of  the  superior 
court  is  calico  for.     Ibid. 

16.  Upon  a  proper  affidavit  a  mandamus,  as  well  as  a  ctrtiorari, 
■will  be  -ranted  to  compel  the  justices  to  return  all  the  proceed- 
ing, a-  They  actually  occurred.      Ibid. 

17.  An  indictment,  for  a  forcible   entry  into   the  field  of  tin 

prosecutor,  cannot  be  supported  by  evidence  that  the  defendan 
entered  peaceably  into  the-  field,  but  while  there  threw  stone 
against  the  house  of  the-  prosecutor,  situated  adjoining  the  field 
tin- prosecutor  at  the  time  being  in  the  house  and  not  in  tb 
field.     State  v.  Smith,  2  Ired.,  127. 


614  FORCIBLE  ENTRY  AND  DETAINER. 

18.  In  a  proceeding  by  inquisition  for  a  forcible  entry  and 
detainer,  before  a  writ  of  restitution  can  be  awarded,  the  jury 
must  find  by  their  verdict  that  the  party,  f<  ircibly  dispossessed,  had 
either  a  freehold  or  a  term  for  years  in  the  land,  of  the  pos- 
sesion of  which  he  has  been  deprived.  Mitchell  v.  Fleming,  3 
Ired.,  123. 

19.  In  an  indictment  at  common  law  for  a  forcible  entry,  it  is 
sufficient  to  prove  that  the  defendant  entered  with  such  force  and 
violence  as  to  exceed  a  bare  trespass.  State  v.  PoUocJc,  4  Ired., 
305. 

20.  Where  a  party,  entering  on  land  in  the  possession  of 
another,  either  by  his  behavior  or  speech,  gives  those  who  are 
in  posi  ession  just  cause  to  tear  that  he  will  do  them  some  bodily 
harm,  it'  they  do  not  give  way  to  him,  his  entry  is  esteemed  for- 
cible, whether  he  cause  the  terror  by  carrying  with  him  such  an 
unusual  number  of  attendants,  or  by  arming  himself  in  i  uch  a 
manner,  as  plainly  to  intimate  a  design  to  hack  his  pretensions 
by  force,  or  by  actually  threatening  to  kill,  maim,  or  beat  those 
who  continue  in  possession,  or  by  making  use  of  i 

plainly  implying-  a  purpose  of  using  force,  against  those  who 
make  resistance.      Ibid. 

21.  In  a  case  of  forcible  entry  and  detainer,  a  jn 

right  to  award  restitution,  unless  the  jury  have  found,  by  their 
verdict,  that  tic  complainant  had.  in  the  land,  either 

a  freehold  or  a  term  of  years.  Without  such  finding,  the  justice 
may  bind  over  the  defendant  to  the  court,  to  answer  to  an  in- 
dictment for  forcible  entry;  but,  withoul  sucb  Ending,  he  has 
no  jurisdiction  to  oust  the  defendant  of  his  pi  and  put 

the  complainant  in;  and,  if  he  do  so,  he  is  himself  liable  to  an 
indictment  for  a  forcible  entry.     Stat  v.  Anders,  8  Ired.,  15. 

22.  Where  A  had  possession  of  a  house,  consisting  of  a  main 
building  and  a  shed,  and  locked  the  door  of  the  shed,  in  which 
he  had  some  tools,  &c,  leaving  a  tenant  in  possession,  and  went 
away,  with  an  intention  to  return;  and  afterwards  the  tenant 
admitted  B  into  the  peaceable  possession  of  the  main  building; 
it  was  held  that  B  was  not  indictable  for  a  forcible  entry  in  break- 
ing into  the  shed,  nd  taking  possession  of  that;  for  when  the 
main  body  of  the  house  ceased  to  be,  in  law,  the  dwelling  house 
of  A.  each  mom  lost  that  character.    Stale  v.  Pridgen,  8  In  d.,  84. 

23.  An  indictment  for  forcible  entry  is  good  at  common  law, 
when  it  charges  "  that  the  defendant  unlawfully,  and  with  strong 
hand,  did  break  and  enter  into  a  certain  house  of  J.  D.,  he,  the 
said  J.  D.,  being  then  and  therein  peaceable  and  quiet  posses- 
sion of  the  same."     State  v.   Whitfield,  8  Ired.,  315. 

24.  A  forcible  detainer  is  not  indictable,  where  the  entry  was 
peaceable  and  lawful.  And  from  the  finding  of  the  jury  that 
the  defendant  "unlawfully,  and  with  a  strong  hand   detained," 


FORCIBLE  ENTRY,  ETC.— FORCIBLE*  TRESPASS.     615 

it  cannot  be  implied  that  the  entry  was  also  unlawful.     State  v. 
Godsey,  13  Ired.,  348. 

25.  Where,  in  an  inquisition  of  forcible  entry  anil  detainer, 
the  allegation  contained  in  the  affidavit  of  the  plaintiff  in  ap- 
plying tor  th'  remedy,  and  in  the  precept  of  the  justice  order- 
ing a  jury,  was  of  a  forcible  entry  only,  and  the  proof  made  out  a 

Forcible  detainer  only,  it  was  l«i<l  that  the  plaintiff  could 
not  recover.     Jordan  v.  Rouse,  1  Jones.  119. 

26.  In  an  indictment  for  a  forcible  entry  and  detainer  at  com- 
mon law.  if  the  verdict  be  a  g  in  ;ral  our.  and  the  evidence  fail 
to  support  either  branch  of  the  charge,  there  must  lie  a  venire 

ate  v.  Ward,  1  Jones,  290.  ^ 

27.  Whether  an  indictment  will  lie  at  common   law  for  a  for- 

liere  the  entry  was  peaci  /•  .     Ibid. 

28  '  statutes  of  forcible  entry  and 

i   ral    rule   to  award   writs  of  re-restitution 

ig  the  proceedin         ad  the  court  will  not.  upon  a 

the  merits  of  tl  y  to 

b  I  in    »  upon    iffidavits;  but  the  writ  is  not  deuiand- 

8  !  i  >\i  S    that  the 

it  will 
be  re         ;       Watsonv.  •■'■        ,  211. 

2:1.  Wb  iveaman  illing  house 

ofanother,  who  is  absent  at  tl  his  arrival,  and  remains 

h.  her  and  using 
insuiti  i  ,  urns,  and  he  still 

then  goes  into  the 
•  ' h  a  club  in  his  i  ring  and  making 

the  ow  uer,  and 
'jell,  -  Jones,  468. 
tmon   law  for  a    I  ry  into 

B.,  and  that  M.  B.  i 
f  irbi  I  for  want   of  an  aver- 

ment  '  house,  or  1  hat  M.  B.  w        h 

r,  or  other  member  of  the  family  of  A.  B.     State 

: 

See  i  il  —l  *f  quashing  indi  itments,  1. ) 


FORCIBLE  TRESPASS. 

1.  In  an  indictment  fora  riot  and  forcible  trespass  in  entering 
a  man's  duelling  house,  he  being  in  the  actual  possession  thereof, 
and  taking  fr  im  his  possession  slav  is  and  other  personal  prop- 
erty, ii  is  not  necessary  to  show  that  the  prosecutor  had  the  right 


616  FORCIBLE  TRESPASS. 

to  the  property,  or  the  right  to  the  possession,  but  that  he  had, 
in  fact,  the  possession  thereof,  at  the  time  when  that  possession 
was  charged  to  have  been  violently  invaded,  and  any  evidence 
tending  to  prove  that  possession  is  admissible.  State  v.  Bennett, 
4  Dev.'and  I '.at.,  43. 

2.  The  violence  necessary  to  supportan  indictment  fof  a  forci- 
ble trespass  in  entering  a  man's  dwelling  house,  and  taking  from 
his  possession  personal  chattels,  will  be  sufficiently  proved  by 
showing  that  the  defendants  appeared  in  such  numbers,  and 
under  such  circumstances,  as  to  deter  the  prosecutor  from  resis- 
tance, though  there  was  no  actual  breach  of  the  peace.  And,  in 
such  indictment,  the  presence  of  the  prosecutor  must  be  proved, 
but  it  need  not  be  shown  that  lie  had  hold  of  the  chattels,  it 
being  sufficient  that  he  was  on  the  spot,     lb'nl. 

3.  An  indictment,  charging  a  forcible  trespass  in  talcing  a 
slain  deer,  is  not  supported  by  evidence  of  the  forcible  taking  of 
a  deer-skin,  severed  from  the  bodyof  the  deer.  Sfatev.  Hemphill, 
4  Dev.  and  Bat,  109. 

4.  In  an  indictment  for  any  forcible  trespass  upon  a  dwelling 
house,  short  of  a  violent  taking  or  withholding  of  the  possession 
of  it,  it  must  be  charged  that  the  proprietor  was  in  the  house,  or 
actually  present  at  the  time.     Statev.  Fort,  -1  Dev.  and  Rat.,  192. 

5.  An  indictment,  charging  a  riot  andforcible  trespass  on  the 
land  of  one,  cannot  be  supported  by  proof  that  the  land  belonged 
to  him,  but  was  then  in  the  possession  of  another,  as  his  tenant. 
It  ought  to  have  charged  the  trespass  to  have  been  en  the  land 
in  the  possession  of  the  latter.     State  v.   Wilson,  1  Ired..  .'!2. 

(!.  On  such  an  indictment,  it  is  only  necessary  to  prove  the 
possession  of  the  prosecutor,  ami  that  may  he  done  by  parol  evi- 
dence, without  the  production  of  any  paper  evidence  of  title. 
Ibid: 

7.  In  an  indictment  for  a  forcible  trespass  in  taking  away 
goods,  it  is  not  absolutely  requisite  to  use  the  words  agair.st  his 
trill,  it  being  sufficient  to  use  words  which  necessarily  convey 
the  same  meaning.  And  to  constitute  such  a  forcible  trespass, 
it  is  not  necessary  that  actual  force  be  used,  as  acts  which  tend 
to  a  breach  of  the  peace  may  amount  to  it.  State  v.  Armfield,  5 
Ired,  207. 

8.  Where  three  persons  took  away  a  slave  from  another,  an  old 
and  feeble  man,  in  his  presence  ami  against  his  will,  and  lie  was 
restrained  from  insisting  on  his  rights  In,  a,  com:;  ton  that  it 
would  be  useless,  and  for  want  of  physical  power  to  enforce  them, 
it  was  held  to  be  a  forcible  .trespass,  for  which  the  parties  were 
liable  to  indictment.     Ibid. 

9.  An  indictment  for  a  forcible  trespass  will  lie  at  common 
law,  if  the  facts  charged  amount  to  more  than  a  bare  trespass. 
Hence,  where  the  prosecutrix  was  in   the  peaceable  possession, 

"with  her  family,  of  a  dwelling  house  and  its  appurtenances,  and 


FORCIBLE  TRESPASS.  617 

four  persons  entered  the  yard  of  the  hottse  with  hostile  or  unkind 
feelings  and  manners,  against  the  will  of  the  prosecutrix,  to  injure 
and  insult  her.  and  refused  to  go  away  when  she  bid  them,  and 
lad  a  common  purpose  in  so  doing,  and  abetted  each  other, 
it  ir  is  /<  ''that  suehaets  and  purposes  rendered  the  parties  liable 
tn  an  indictment  for  a  forcible  trespass.  Slate  v.  Tolev\  i .  5  Ired., 
452. 

10.  When  the  name  of  the  county  is  mentioned  in  the  margin 
of  the  indictment,  and  it  is  stated  that  the  dwelling  house,  on 
which  the  forcible  trespass  is  alleged  to  have  been  committed, 

ituate  and  being,"  this  must  refer  to  the  county  men- 
in  the  margin.      / 

11.  Xo  matter  what  an  officer  declares  when  ho  seizes  property, 
if  he  have  a  lawful  process  authorizing  him  to  si  ize  it.  he  can 
not  l>e  indicted  for  a  forcible   trespass   in   making  the   seizure, 

v.  Elrod,  li  Ired.,  250. 
\2.  The  gist   of  tie.-   offence  of  forcible   trespass   is  the  high- 
handed invasion  of  the  possession  of  another,  hebeingpresenl  ;and 
the  title  isnotdrawn  in  question.  State  v.  AlcCauless,  '•!  Ired..  375. 

13.  If  two  persons  be  in  tin-  same  house,  the  law  adjudges  the 
;  i  sion  to  be  in  him,  who  lias  the  title:  but  not  so,  as  by  re- 
lation back,  to  make  the  other  guilty  oi  a  forcible  trespass,  when 
the  entry  was  without  force.     Ibid. 

14.  At  common  law  no  trespass  on  chattels  was  an  indictable 
i,  without  a  breach  of  the  peace;  that  is,  either  the  peace 

must  have   been  actually  broken,  or  the  act  complained  of  must 
\  and  manifestly  have  tended  to  it,  as  being  done  in  the 
presence  of  the  owner,  to  his  terror  or  against  his  will.     State 
v.    Phipps,    10    Ired.,  17. 

15.  The  offence  of  forcible  trespass  must  lie  charged  to  have 
been  done  with  a  strong  hand,  '  forft,"  which  implies  great- 
er force  than  is  expressed  by  the  words  "viet  or  mis."  And  to 
constitute  the  offence,  there  must  be  a  demonstration  of  force,  as 

with  weapons,  or  a  multitude  of] pie,  so  as  to  involve  a  breach 

of  the  peace,  or  directly  tend  to  it,  or  be  calculated  to  intimidate 
or  put  in  fear.     Stale  v.  Ray,  10  [red.,  39. 

16.  To  make  a  forcible  trespass  indictable,  some  person  must 
be  in  the  house  or  on  the  premises,  to  cause  the  act  complained 
of  to  amount  to  a  breach  of  the  public  peace,  or  have  an  imme- 
diate tendency  to  provoke  it:  some  person,  who  has  a  right  to  de- 
fend the   possi    -ion.  to   be  provoked   at  its  invasion.      Statev. 

Walker,  10  Ired.,  234. 

17.  The  indictment  for  forcible  trespass  must  charge  who  was 
at,  at  the  time  of  the  alleged  trespass,  and  if,  on  the  trial,  it 

appears  that  such  person  was  not  present,  the  defendant  must  be 
acquitted.     Ibid. 

IS.  Where  one,  who  is  not  on  friendly  terms  with  the  owner 
of  a  dwelling  house,  comes  there  armed,  and,  immediately  after 


(318    FOKCIBLE  ENTRY. -FOREIGN  LAWS. -FORGERY.. 

entering,  uses  violent  and  threatening  language  in  the  presence 
of  the  owner,  and,  on  being  forcibly  ejected  by  an  inmate  of  the 
House,  again  comes  to  the  outer  door  and  forces  it  open  agarnsl 
the  owner,  who  is  struggling  to  keep  it  closed,  he  is  guilty  of  a 
forcible  trespass,  although  the  ownei  may  nol  have  forbidden 
him  in  words,  from  entering.     State  v.  Bordeaux,  "1  Jones;  241. 

111.  To  make  a  trespass  for  an  entry  on  land  ihdictabli ,  it  must 
be  committed  manu  forti,  in  a  manner  which  amounts  to  a  breach 
of  the  peace,  or  which,  at  least,  would  necessarily  lead  to  a  breach 
of  the  peace,  if  the  person  in  possession  were  not  ovei'awed  by  a 
display  of  force,  and  thus  induced  tp:£6rbear  from  resistance. 
1.9.9,  4  Jones,  315. 

20.  Where  one,  having  a  right  to  inter  on  land  in  the  p 
sion  of  a  tenant  at  suff  :nt  with  four  others,  and 

ae  id  building  on  the  land  outside  of  the  tenant's  enclosure, 
withoui  i  ivading  his  dwelling  or  molesting  his  enclosure,  and 
without  any  display  of  arms,  or  actual  breach  of  the  peace,  itwas 
held  not  to  be  indictable.     /  bid. 

21.  Whether,  at  the  common  law,  one  who  has  the  right  of  en- 
try may  no1  use  fon  to  assert  his  right,  is  an  un- 

on,     I  bv  I. 
■I'l    [f    iree  break  open  the  ]  ib  and  take  his  corn 

; 
guilty  id1  be  takin 

to  be  from  tl  ■ 

•Ml. 
See  (  [n  lii  I  ment — In  win  t  case  .  ;il   li".  3   1 1 

,  :tment— Form  and  matters  n 
'  i     (Tei  ii,  21.) 


FOREIGN  LAWS. 

!.    :  In  ■■■  ■■  i  ■■'    ctci   ite  foreign  law  is  an  enquiry  for  the  jury; 

but  thai  fad    being- ascertained;  its  construcl and  effect   are 

qui  si      •    to  the  court,     State  v.  Jackson,  2  Dev.,  563. 

I  Evidence — Laws  and  legal  proceedings  in  other  state.-  and 
countries.) 


FORGERY. 

See  (Indictment — In  what  cases  an  indictment  will  lie,  17-32 


FORGERY.— FORNICATION  AND  ADULTERY.      619 

33-72-74.)  (Indictment — Form  and  matters  relating  thereto, 
6-17-23-59-92-95-102-103-107-148-149.)  (Indictment— Of  the 
trial,  verdict  and  judgment,  13-45.)  (Evidenci — In  criminal 
pros  icutions  and  indictments.  13-28-41-48-54-57.) 


FORNICATION  AND  ADULTERY. 

1.  A  man  may  be  separately  indict  r  the  act  ol  a 

v.  Co. :  X.  C.  Term,  R., 
.  ch.  34,  sec.  45.) 
■>.   i  i  fornication  and  adulteiy,  the  in- 

dictment must  ch;  ad  not  inter- 

nication  an 
,  ither, " 

ined   by  showing  an    I  ir- 

f  the  woman  to   the   \  ra1  ification  of  the 
i   taken   the  other  into  his  or 
her  1:  ■'■  \.  •■■  U  :■■  3  I »(  v.  and  Bat.,  1 10. 

4.  Tl       i      iage  between  a  free  of  col 

-1  by  law,  and  void,  and,  th<  refore,  whi 

Sthe   law  i 
tion  and  adultery.     State  v.  Fore,  1  Ired. 
7.  and  ch.  34. 
An  indie  thai   J.  F.  did  "  take  into' his  house 

C,  and  they  did  then  and  there  hi 

ation,  they  the  said  J.  F.  and 

S.  C,  never  having  been  lawfully  married,"  is  sufficiently  cer- 

- -h  expres    id.      rhe  court  must  inte#d  from 

-  thai  the  pai   i      •     re  "I'  different  sexes.     Ibid. 

6.  Where,  on  an  indictment  for  fornication  and  adultery,  the 
jury  found  that  the  defendants  were  guilty  of  fornication,  but 
not  guilty  of  adultery,  the  state  was  held  to  be  entitled  i 
ment.     ■    i      v.  ( 'ou   11,  I    Ired.,  231. 

7.  :  -a  the  trial  of  an  indictment  for  fornication  and  adultery, 
it  is  not  necessary  to  show  by  direct  proof  the  actual  bedding 
and  co-habiting;  it  is  sufficient  to  show  circumstances,  from 
which  the  jury  may  reasonably  infer  the  guilt  of  the  parties. 
Therefore,  where  it  was  stated  by  a  witness,  that  he  went  early 
one  morning  to  the  house  of  one  of  the  defendants,  and  on 
knocking  was,  after  some  hesitation,  admitted  by  the  female  de- 
fendant, who  came  to  the  door  with  her  frock  on.  but  unfastened; 
that  the  male  defendant  was  in  the   only  bed  in  the  room;  that 


620     FORNICATION  AND  ADULTERY.— FRAUD.— I. 

the  shoes  of  the  female  were  near  the  head  of  the  bed,  and  that 
the  bed  seemed  to  be  very  much  tumbled;  it  was  held  that  this 
was  sufficient  to  justify  the  jury  in  finding  a  verdit  of  guilty. 
State  v.  PoUvt,  <S  I  red.,"  23. 

8.  In  an  indictment  against  two  for  fornication  and  adultery, 
one  may  be  convicted  and  punished  without,  or  before,  any  con- 
viction of  the  other;  though,  if  they  be  tried  together,  a  verdict 
of  guilty  cannot  be  rendered  against  one,  if  the  other  be 
found  not  guilty.     State  v.  ParJiam,  5  Jones,  416. 

9.  A  bill  of  indictment,  which  charged  that  "A,  (a  male),  anil 
P>,  (a  female),  unlawfully  did  bed  and  co-habit  together,  without 
boing  lawfully  married,  and  did  commit  fornication  and  adul- 
tery," was  held  to  be  a  sufficient  charge  of  the  offence,  as  speci- 
fied in  the  Rev.  Code,  ch,  34,  sec.  45.  Slate  v.  Lyerly,  7  Jones, 
1 58. 

10.  Where,  in  an  indictment  for  fornication  and  adultery,  one 
of  tie;  partie  was  not  taken,  and  en  the  trial  of  the  other  a  gen- 
eral verdict  of  "guilty"  was  found,  it  icas  J, dd  to  lie  sufficient. 
Ibid. 

See  (Evidence — In  criminal  proceedings  and  indictments,  45.) 


FRAUD. 


t.  Conveyances,  agreements,  &c.,  frau- 
dulent as  to  creditors. 
II.  Conveyances  fraudulent  as  to  subse- 
quent purchasers. 
III.  Remedy  against  fraudulent  convey- 
ances. 


IV.  Fraud  in  the  removal  of  debtors. 
V.  Fraud  in  the  execution  of  a  deed  or 
other  instrument. 
VI.  Fraud  at  auction  sales. 


I.   CONVEYANCES,  AGREEMENTS,  AC,  FRAUDULENT  AS  TO  CREDITORS. 


1.  Fraud  in  the  execution  of  a  deed  must  be  proved,  as  well  as 
suggested.     Bell  v.  Hill,  1  Hay.,  72,  (85.) 

2.  A  disposition  of  any  part  of  his  property  to  his  child  by  a 
father,  indebted  more  than  he  is  worth,  will  be  fraudulent  and 
void  as  to  creditors,  unless  the  child  can  prove  the  purchase  to 
have  been  made  for  a  full  and  fair  price,  actually  paid.  Arnold 
v.  BeU,  1  Hay.,  396,  (456.) 

3.  Property  sold,  remaining  in  the  possession  of  the  vendor,  is 
evidence  of  fraud,  though  liable  to  be  explained.  Hedges'?, 
Blount,  1  Hay.,  414,  (478.;  S.  P.  Cox  v.  Jackson,  Ibid.,  423.  (488.  j 
Ingles  v.  Donaldson,  2  Hay.,  57,  (222,)  and  10  (261.)  Vich  v 
Keys,  Ibid.,  126,  (287.)     Falkncrv.  Perkins,  Ibid.,  224,  (399.) 


FRAUD.— I.  621 

4.  Secresy  in  a  transaction  is  a  mark  of  fraud;  and  it  is  con- 
sidered secresy,  that  it  is  done  only  in  the  presence  ofneai  ref- 
lations, or  at  a  distance  from  the  neighborhood.  Fickv.  Keys, 
2  Hay.,  126,  (287.) 

.i.  [fa  conveyance  be  madi  to  defeat  an  expected  recovery  in 
a  suit,  it  will  nut  lie  deemed  fraudulenl  to  defeat  creditors,  should 
Ih"  r  scovery  in  it  take  place.     Brady  v.  Ellison,  2  1  lav..  348,  ( ■'■>'.>.  \ 

6.  Inadequacy  of  consideration,  embarrassed  circumstances  in 
the  alienor,  his  remaining  in  the  possession  of  the  land  after  the 
sale,  tin-   secresy  of  the  trans;  m  a   combination  of  cir- 

indicative  of  fraud.     Darden  v.  Hkinner,  2  Car.  L.  R., 
279,  i 

7.  Wl  m  if  a  chattel  does  not  accompany  and 
follow  the  title,  the  transaction  is  fraudulent  in  law.      (  ai  her  v. 

rd,  X.  C.  Term  R.,  ir>7,  (600.)     (Overruled,  see    Trotkr  v. 
Hotcard,  1  Hawks,  320,  and  i 

8.  [f  an  absolute  deed  be  made  of  a  chattel,  and  a  defeasance 
lie  mad.'  at  tin-  same  1  it: ; •  - .  hut  separate  from  it.  it  shall  nol  ope- 

i    to   i  he  prejxidice  of  a  third  person,  but  will 
1  e  fraudulent  and  void  as  to  en  ditors  and  purchasers.     Ibid. 

9.  Whether  a  deed  be  fraudulent  or  bona  fide,  is  a  question  of 

ssession,  or  the  want  of  it,  is  but  evidence  tendingto 
ine  the  question  one  way  or  the  other.      Trotter  v.  How  ird, 
1  Hi  wks,  320,  S.  1'.     Smith  v.  Neil,  Ibid.,  341. 

10.  If  the  plaintiff,  in  a  magistrate's  judgment,  know  that  the 
defend:  :  rsonal  property  sufficient,  to  satisfy  his  execution, 
and  permits  the  constable  to  levy  (inland  and  return  no  personal 
pro]           to  bi    found,  then  moves,  on  such  return  and  levy,  for  a 

imes  himself  the  purchaser  of 
the  land,  it  is  not  a  fraud  in  law,  but  is  a  circumstance  to  be  lett 
to  the  jury,  on  the  question  of  fraud  in  fact.  Lanier  v.  Stone,  1 
Ha-rfks,  329. 

Jl.  Where  a  creditor,  by  bond,  of  an  insolvent  absconding 
del  ti  e  '.  list  whom  sevi  ral  executions  had  issued,  received, 
before  the  sale  of  the  property,  a  certain  sum  to  be  applied  to- 
wards the  satisfaction  of  a  certain  judgment  creditor,  but  did  nut 
applj  it,  and.  at  the  sale  of  the  debtor's  property,  purchased  his 
Jam!,  and  paid  off  the  said  judgment  creditor  only,  and  after- 
wards conveyed  to  the  plaintiff;  but  between  the  time  of  the 
purchase  by  tin'  plaintiff's  vendor,  and  his  sale  to  tin'  plaintiff, 
the  land  was  sold  under  other  executions,  when  the  defendants 
became  the  purchasers;  it  was  held  that  the  conduct  of  the  plain- 
tiff's vendor  was  nut  fraudulent  as  to  the  other  creditors,  and.  at 
all  events,  it  could  not  affect  the  plaintiff,  who  was  a  l< 
pun  baser  from  him.  It  washeld  further,  that  Ihedebtor's  equity 
againsl  the  plaintiff's  vi  ndor,  for  the  misapplication  of  the  money 
entrusted,  was   not  such   an  equity  as  was  subject  to  sale  under 


622  FRAUD.— I. 

the  act  of  1812.  HawTans  v.  Srieed,  3  Hawks,  149.  (See  Rev. 
Code,  ch.  4.r>,  sec.  4.) 

12.  Possession  retained  by  the  vendor  of  chattels  does  not^jer 
se  make  the  sale  fraudulent  in  law.  It  is  but  presumptive  evi- 
dence of  fraud,  proper  to  be  leftto  the  jury;  and,  to  rebui  the  pre- 
sumption, the  vendor  may  show  that  a  consideration  passed; 
though  none  be  stated  in  the  bill  of  sale.  Howell  v.  Elliott,  1 
Dev.,  76. 

13.  Where  a  parent,  before  the  year  1806,  being  unembar- 
rassed, made  a  parol  gift  of  a  slave  to  a  child,  and  the  child  and 
slave  resided  in  the  family  of  the  parent,  it  was  held  that  the  gift 
was  void  as  to  creditors  of  the  parent,  whose  debts  wereci  utrac- 
ted  twenty  years  afterwards.  Peterson  v.  Williamson,  2  Dev., 
326. 

14.  The  gift  was  so  absolutely  void  against  creditors  and  pur- 
chasers, that  an  open  and  notorious  adverse  possesi  ion  of  the 
child,  together  with  perfect  bdna  fidi  ■  in  both  parties,  could  not 
validate  it,  against  the  creditors  ol  the  donor,  without  respect  to 
the  time  when  their  ri  •       ied.     Ilrid. 

la.  A  conveyanci  fraii  !  ilent  as  to  one  creditor  is  void  as  to 
all  creditors.     Hoh ■  v.  Henderson-,  •">  Dev.,  12. 

L6.   A  voluntary  convey  in  i   to  a  child,  made  by  an  ini  olvent, 
fa  !o  void,  as  to  pi-e-existing  debts.  Morgan  v.  McClelland, 
3  Dev.'.  , si'. 

17.  The  statute  of  13  Eliz.  being  intended  to  protect  cred 
a  J        jijie  purchaser,  from   a  fraudulent  vendee,  1ms  no!   title 
against  'the  vendor.     But  that  of  27th  Eliz.  being 

intended  for  the  benefit  of  purcha:  !  -.  the  Br  I  bjna  Repur- 
chaser, whether  from  the  fraudulent  vendo  .  within 
its  operation.     Hokcv.  Henderso  -  3   Dev.,  12. 

L8.   A  lona   fldt   fen  dee,  who  pays  hi  to  sat- 

tanding  fraudi  I1  al  moi  >    .-v.  e,  and  tal  I  from 

both  the  mi  i    i     '  n    ■ .    ■  I 

!  Dev.,  105. 

19.  Jn  i  - ■■;  .  ainsl   Fraudulent  c  mveyan- 

ces,  the  gor  i  ■     d  I     r  owner  of  the  estate,  and 

the  mortgagi  e  but  an  incumbrancer.     Hid. 

■20.   A  by  an  insolvent  of  all  his 

wherebj  i  m  of  hi  creditors  are  preferredj  with  astipulation 
that  the  prop  rty  hall  remain  in  his  possession,  until  a  sal  maj 
be  directed  by  a  majority  of  the  ci  editors  named  in  the  •'■  ed,  is 
not,  in  law,  fraudulent  upon  its  face,  so  as  to  authorize  the  court 
to  pronounce  i;"  void;  but  its  validity  must  be  submitted  to  the 
jury,  upon  proof  as  to  its  fraudulent  intent.  Moore  v.  Collins,  3 
'Dev.,  126. 

21.  A  deed  made  for  the  purpose  of  indemnifying  a  party 
against  a  responsibility,  created,  as  a  pretence  for  making  the 


FRAUD.— I.  623 

deed,  and  thereby  to  Becure  the  use  of  the  property  to  the  debtor. 
is  fraudulent  and  void.     Leadman  v.  Harris,  3  Dev.,  144. 

22.  A  deed  made  to  secure  a  true  debt,  but  for  the  real  pur- 
f  enabling  the  debtor  to  continue  in  the  us  oyment 

of  the  property  conveyed,  is  fraudulent  and  void.     Ibid, 

23.  Where  the  fraudulent  intent  is  made  to  appear  by,  evidence 
extrinsic  of  the  deed,  it  is  a  question  for  the  jury;  hut  what  is  a 
fraudulent  intenl  is  a  qui  stion  of  law  for  the  court.     Ibid. 

24.  The  maxim  p  '■  litt  nihil  innovetur  is  not  applicable  to 
fraudulent  judgments.     Haywood  v.  Sledge,  •">  Dev., 

25.  Where  A  conveyed  his  estate  to  a  trustee   to  secure  his 

•eed  to  purchase  the  estate  at  a  sale  by  the 
.and  upi  m  a  resale,  afti  aifying  himself,  to  hold 

the  surplus  for  A,  it  was 

lie  surplus  to  satisfy    C,  was  not  voluntar 
fraudulent  a  li   there   was  no  written 

andum  of  the  agree)  a   him  and  A.     Jones  v. 

n,  3  Dev.,  : 

26.  Wh  iu   pursuance  of  a  family  arrangement, 

'v  to  his  da 

llOi] 

i  ■ !i  it  is 

1    r;  a  i  1  if  the 
if  a  jud  at  her,  i 

d  it,  no  title.      Wall  r  v. 

5 

27.  A  s  ittlemei 

red        ....      deb      oi  fori 

li 
28  iudulen1  conveyam  e  can  1 

■;    '  ?. 
20.    '■ 

.  in  law,  fran  voidagainst 

i 
30.  An  a        uted      I,  with  r  or  1     lem 

I    . 

.     lh',,1. 

'■'A.   I  id  t  the  1  ing  a  volun 

_     .  ■'■  !       .  O     - 

i  i  ■   the  property  coi  i  . 

only  evid  on   of  which 

the  jury;  but  in  r  prior  creditors,  wh 

i  rwise  satified,  it  constitutes   fraud  in  law,  to  b    d      ared 
by  the  court.     O'Daniel  v.  Crawford,  4  Dev.  197. 

32.  A  voluntary  conveyance  will  never  be  uphold  to  di  feat  a 

prior  creditor,  whatever  be  the  amount  of  his  demand,  although 

rantor  reserve  property  amply  sufficientto  satisfy  the  debt, 


624  FRAUD.— I. 

and  the  necessity  of  resorting-  to  that  conveyed  arise  from  the 
wasting-  of  that  reserved,  many  years  after  the  conveyance.  Xor 
is  there  any  exception  from  these  principles  in  favor  of  disposi- 
tions made  by  parents  in  advancement  of  children,  the  princi- 
ple beinguniversal  in  its  application,  that  a  voluntary  conveyance 
yields  to  the  prior  debt,  as  far  as  is  necessary  to  its  satisfaction. 
Ibid.  (As  to  prior  creditors  the  law  is  now  altered,  see  Rev. 
Code,  fli.  50,  see.  3.) 

33.  A  bona  fide  purchaser  foravaluable  consideration,  without 
notice,  from  a  fraudulent  grantee,  acquires  a  good  title  against 
the  creditors  of  tip-  original  fraudulent  grantor.  Martin  v. 
Coivk.%  1  Dev.  ami  Bat,  29. 

34.  The  possession  of  n  son-in-law,  under  a  parol  gift  from  his 
wife's  father,  is  not  evidence  ol  fraud  in  the  donor,  as  to  the 
creditors  of  tin-  son-in-law,  unless  there  In-  a  conveyance  of  the 
slave  by  the  donee  for  the  benefit  of  his  creditors,  which  is  known 
to  the  donor  and  acquiesced  in  by  him.  Hill  v.  Hughes,  1  Dev. 
and  Bat.,  327. 

35.  Under  the  statute  of  13  Eliz.,  a  conveyance  made  with  a 
view  ti>  becoming  indebted,  is  as  much  fraudulent  as  one  made 
by  a  person  already  indebted.  Littleton  v.  Littleton,  1  Dev.  and 
Bat.,  327. 

36.  A  voluntary  conveyance  made  by  a  debtor,  who  owned  at 
the  time,  and  left  at  his  death,  sufficient  property  to  pay  all  tin- 
debts  which  he  owed  at  tin-  time  of  the  conveyance,  is  not  ne- 
cessarily fraudulent  and  void  as  to  creditors.  The  actual  intent, 
with  which  the  deed  was  made,  must  be  submitted  to  the  jury. 
Jones  v.  Young,  1  Dev.  and  Bat.,  352. 

;'.7.  The  statute  of  frauds  of  Virginia,  making-  a  possession  of 
slaves  for  live  years  under  a  bailment  fraudulent  as  to  tin-  credi- 
tors of  tin'  bailee,  has  no  effect,  unless  the  full  term  of  the  pos- 
session takes  place  within  that  state;  and  where  it  commenced 
then-,  hut  was  completed  in  this  state,  (7  was  held  that  a  purcha- 
ser, under  an  execution  issuing  here  against  the  bailee,  acquired 
no  title.     Laird  v  Brady,  2  Dev.  and  Bat.,  ."41. 

38.  It  seems,  that  where  the  defendant,  in  an  execution,  and 
his  family  make  a  fraudulent  misrepresentation  of  the  quality 
and  value  of  land  levied  upon  and  about  to  be  sold,  with  a  view 
to  defeat  the  creditors  of  the  defendant,  and  to  secure  it  for  his 
benefit,  and  one.  ignorant  of  the  fraudulent  arrangement,  pur- 
chases at  an  inferior  price,  his  title  will  be  good  against  the 
creditors,  as  will  also,  at  least  at  law,  be  the  title  of  one  of  the 
parties  to  the  fraudulent  arrangement  purchasing  from  him.  but. 
if  in  such  case  the  sale  were  void,  as  for  the  want  of  a  seal  to 
the  writ  issuing  from  another  county,  and  the  first  purchaser 
sold  without  ever  having  taken  possession,  the  possession  of  his 
vendee,  a  party  to  the  fraudulent  arrangement,  will  be,  as  to  the 
creditors  of  the  defendant,  a  possession  for  him,  and  will  not  be 


FRAUD.— I.  625 

adverse  to  the  creditors,  so  as  to  defeat,  them  by  length  of  pos- 
session under  color  of  title.  Dobson  v.  Encin,  4  Dev.  and  Bat., 
201. 

39.  The  possession  of  a  fraudulent  vendee  cannot,  in  respect 
of  a  creditor  of  the  fraudulent  vendor,  be  deemed  adverse  to 
such  vendor  or  his  creditor,  because  the  statute  makes  the  whole 
contract  void.  and.  as  against  the  creditor,  the  possession  of  the 
vendee  is  deemed  to  have  been  in  trust  for  the  vendor,  and, 
therefore,  it  is  the  possession  of  the  vendor.  But,  when  a  sale  is 
once  made  by  the  creditor,  then  the  possession  ol  the  fraudulent 
vendee  becomes  adverse,  for  the  law  does  not  suppose  anysecret 
confidence  between  tin.'  donee  and  the  purchaser.     Ibid. 

40.  Where  a  vendor  and  purchaser  contracted  for  a  life  estate 
in  certain  slaves,  at  a  fair  price  for  such  interest,  under  the  sup- 
position that  the  vendor  was  entitled  to  no  greater  interest  in 
the  slaves,  and  the  vendor  executed  a  bill  of  sale,  conveying  "all 
his  right,  title  and  interest  in.  and  to  the  slaves,"  to  the  purcha- 
ser, and  it  turned  out  that  the  vendor  was  entitled  to  an  absolute 
inten  st  in  them,  which  was  ten  times  the  value  of  the  life  i 

it  ioas  held  in  a  suit  at  law  in  the  life  time  of  the  vendor,  by  the 
its  ol  iii"  vendor,  impi  aching  the  deed  for  fraud,  that  the 
mistake  might  '»■  shown  by  parol  testimony,  and  that  the  con- 
veyance was  not  fraudulent  and  void  as  to  such  creditors,  llim- 
yon  v.  Leary,  1  Dev.  and  Bat.,  231. 

41.  .Matter  dehors  a  deed  may  he  resorted  to  for  the  purpose  of 
repelling,  as  well  as  founding,  an  imputation  of  fraud.      Ibid. 

42.  An  absolute  hill  of  sale  for  slaves,  accompanied  witli  a  pa- 
rol contract  between  the  parties  that  the  vendor  might  redeem 
or  re-purchase  the  slaves,  by  re-paying  the  same  price,  is  not  void 
as  against  the'  creditors  of  the  vendor,  under  the  act  of  1820,  or 
the  13th  Eliz.,  when  it  is  admitted  that  the  sale  was  not,  and 
was  no1  to  lie.  a  mortgage,  but  was  bona  fide,  absolute 
and  for  a  fair  price.  Newsom  v.  Moles,  1  lied.,  179.  (See  Rev. 
Code,  eh.  M.  sec.  22.  and  eh.  50,  sec.  1.) 

4o.  A  deed  absolute  on  its  face,  but  intended  as  a  mortgage 
only,  is  fraudulent  and  void  against  creditors  and  purchasers, 
and  againsl  subsequent,  as  wi  11  as  prior,  creditors.  Hdteombt  v 
Bay,  i  I od..  340. 

44.  Such  a  deed  cannot  be  rendered  valid  by  any  subsequeni 
agreement  between  the  grantor  and  grantee,  chat  the  granted 
should  have  all  the  interest  of  the  grantorin  the  premis<  s,  and 
by  the  actual  payment  by  the  grantee,  in  pursuance  of  such 
agreement,  of  the  full  value  oi  the  land  to  the  grantor's  cred- 
itors; nor,  even  where  the  deed  is  re-delivered  subsequently  to, 
and  in  pursuance  of.  such  agreement,  Having  taken  effect,  as 
between  the  parties,  on  the  first  delivery,  the  deed  could  not  be 
surrendered  to  lie  re-delivered.     Ibid. 

4a.  Where  land  was  purchased  by  A,  but  the  deed  was  made 
40 


626  FRAUD.— I. 

to  her  daughter  B,  who  became  personally  liable  for  a  part  of 
the  consideration  money,  a  creditor  oi  A  cannot  sell  this  land, 
under  an  execution  at  law,  to  satisfy  a  judgment  ol  itained  1  >y  him 
against  A,  although  the  land  was  so  conveyed,  expr  i  ly  to  pro- 
tect it  from  the  debts  of  A.  It  cannot  lie  sold  by  virtue  of  the 
statute  of  frauds,  13th  Eliz.,  because  that  only  avoids  conveyauces 
made  by  the  debtor  himself.  Nor  can  it  be  sold  under  the  act  of 
\%l"2,  subjecting  trust  estates  to  execution,  for  that  only  applies 
to  a  case  in  which  the  debtor,  the  cestui  que  trust,  could  immedi- 
ately and  unconditionally  claim  a  conveyance  of  the  legal  estate 
from  the  trustee — not  to  one  where  the  trustee  needs  tin 
estate  to  subserve  the  rights  of  himself,  or  of  third  persons. 
Gotcing  v.  Bich,  1  Ired.,  553.     (See  Rev.  Code,  ch   50,  s<  c.  1,  and 

eh.    45,    see.     [.) 

4(i.  In  the  case  above  stated,  B,  the  grantee  and  trustee,  be- 
fore she  could  be  compelled  to  part  with  the  legal  title,  had  a 
right  to  be  compensated  for  the  money  she  had  paid,  or  to  be 
indemnified  for  the  liability  she  had  incurred,  in  relation  to  the 
consideration  of  the  purchase.  The  remedy  of  the  creditor  was 
in  equity,  but  on  a  different  principle,  and  that  is,  the  right  in 
equity  to  follow  the  funds  of  the  debtor.      Ibid. 

47.  A  deed  in  trust,  dated  the  16th  August,  1841,  made  by  an 
insolvent  debtor  for  the  benefit  of  preferred  creditors,  declared 
that  the  property  shall  he  sold  "a1  any  time  after  the  1st  day  oi 
January,  1842,  or  betore,  if  directed  by  the  said  S.  B.  S.  (the 
debtor)  on  such  terms,  and  at  such  places  as  shall  hi-'  directed 
by  him ;  the  said  H.  J.  C,  (the  trustee)  is  to  sell  the  aforesaid 
property,  and  out  of  the  proceeds  to  pay  first  the  expenses  of  execu- 
ting this  indenture,  in  the  next  place  the  debt  of  T.  I  >.  (one  of 
those  recited  in  the  premises  of  the  deed,)  and  as  to  all  the  oth- 
er debts  and  dues  mentioned,  he  is  to  pay  them  with  interest  and 
the  costs  now  due,  or  which  may  become  due,  on  suits  now  pene- 
ing,  prorata."  A  declaration  or  stipulation  is  then  appended: 
"It  is,  however,  stipulated  that  as  the  said  S.  11.  S.  is  anxious  to 
save  harmless  all  his  securities,  if  there  be  any  of  them  unprovi- 
ded for  in  this  indenture,  he  is  at  liberty  to  direct  them  to  be 
paid  in  like  manner  as  Iris  other  securities  are.''  The  property 
conveyed  consisted  of  lands  in  different  parts  of  tins  state,  of 
slaves  in  different  counties,  and  of  contracts  unexecuted,  &c.  If, 
was  In!')  that  these  provisions  did  not  per  ye  make  the  deed  irai  1- 
uieiit  in  law,  as  against  other  creditors  of  the  debtor.  Gannon  v. 
Peebles,  2  lred.,  449. 

48.  Though  a  conveyance  may  be  fraudulent  against  creditors, 
it  is  good  against  the  grantor  and  tortfeasors  not  claiming  as 
creditors.      Worth  v.  Northam,  4  Ired.,  102. 

49.  Although  an  imposition  on  particular  creditors  by  false 
representations  of  his  son's  credit  by  a  father,  might  make  him 


FRAUD.— I.  627 

liable  in  a  proper  action,  yet  even  an  express  fraud  of  that  kind 
would  not  work  a  change  of  property,  so  as  to  render  what  was 
really  the  property  of  the  father,  subject  to  an  execution  against 
the  son.     Hollowed  v.  Skivner,  -1  Ired.,  165. 

50.  Where,  in  a  deed  of  trust  for  the  satisfaction  of  creditors, 
the  maker  of.  the  deed  reserves  to  himself  a  general  power  of 
revocation,  anfl  the  declaration  of  other  trusts  by  which  he  may 
be  benefitted,  tin-  deed  is  fraudulent  on  its  face' ami  void.  But 
when  he  onljtreserves  the  privilege  of  adding  to  the  number 
of  preferred  creditors  others  of  the  same  class   thi     !  ed  cannot 

bepr unced  by  the  court  fraudulent   en  its  face;  'ait  it  must 

be  left  to  the  jury  to  determine,  whether  such  provision  was  in- 
serted with  a  fraudulent  intent.     Cannon  v.  Peebles:,  4  Ired..  204, 

51.  Where  A  gave  an  absolute  bill  of  sale  to  13  for  a  horse, 
with  a  parol  agreement  that  A  might  redeem  the  horse,  the  con- 
tract was  fraudulent  and  void,  as  against  the  creditors  of  A; 
but  if  he  subsequently  sell  the  horse  to  B,  bona  fide,  and  for  a 
valuable  consideration,  before  any  lien  of  the  creditors  attaches 
this  sale  is  not  affected  by  the  previous  fraudulent  contract,  but  is 
valid  against  the  creditors  of  A.      King  v.    Cantrell,  -I  [red.,  25L 

52.  Where  a  father,  with  funds  fm nished  by  his.daughter  in 
his  hands,  purchased  a  slave  at  public  auction  for  her,  and  in  her 
name,  but  took  a  bill  of  sale  in  hid  own  name,  and  took  posses- 
sion of  the  slave  and  gave  Ins  bond  for  the  purchase  money  ae- 
cording  to  the  terms  of  sale,  and  then  immediately  afterwards 
conveyed  her  to  his  daughter,  ft  was  held  that  .the  conveyance 
could  not  be  considered  fraudulent  as*against  the  father's  creditors, 
h  he  could  Save  been  compelled  in  equity  to  make  such 
conveyance,  had  it  been  taecessarjff  but  in  fact  it  was  not  neces- 
sary, as  by  tlie  sale  and  delivery  under  the  circumstances.  :m 
absolute  legal  title  immediately  passed  to  her.     Buiev  KeUv  5 

led..    169.    "  *  ''' 

53.  -V  devise  of  a  naked  power  to  sell  land  by  an  executor,  and 
to  divide  the  proceeds  amen-'  the  devisor's  wit-  and  children,  is 
fraudulent  and   void  as  against  his  creditors.     Mgram  v.  Sloafi 

,  565. 

54.  The  retaining  of  the  possession  of  slaves  by  a  vendor,  after 
giving  a  bill  of  sale  absolute  on  its  face,  though  not  per  se  frau- 
dulent, is  yet  a  circumstance,  which,  with  other  facts'  and  cir- 
cumstances found  or  admitted,  would  authorize  the  court  to  say 
that  the  transaction  was  void  for  fraud,  fraud  being  a  question 
of  law,  upon  iacts  and  circumstances  found  or  admitted.  '  Rea  v. 
Alexander,  5  Ired.,  644. 

55.  Where  it  is  a  part  of  the  agreement  of  the  sale  that,  not- 
withstanding the  absolute  deed,  the  vendor  shall  have  the  pos- 
session and  use  of  the  property  conveyed,  for  an  indefinite  period, 
this  amounts  to  an  express  seoret  trust  for  the  vendor,  and  con- 


628  FRAUD.— I. 

stitutes  a  fraud  on  creditors,  deceived  or  hindered  by  tire  transac- 
tion.    Ibid. 

"ill.  A  voluntary  deed  is  not  void  as  to   creditors,  when   the 
donor  retains  sufficient  property   to    pay  his  del  its.  and   out  of 
which  the  claims  of  creditors  may  be  satisfied.     Arnett  v.  ' 
6  rred.,  41. 

57.  The  act  of  1840,  ch.  28,  applies  to  voluntary  deeds  made 
before  the  passage  of  the  act.  as  well  as  to  those  made  subse- 
quently.    Ibid.     (See  Rev.  Code,  ch.  50,  sec.  3.) 

58  A  being  seized  ami  possessed  of  an  estate  in  fee  in  a  tract 
of  land,  subject  toa  limitation  overto  B,  in  tin.'  event  of  his  dying 
without  issue,  made  a  fraudulent  conveyance  of  the  land;  and 
afterwards  B  died  leaving  A  his  heir  at  law.  //  was  held 
that,  after  the  death  of  B,  the  whole  estate  in  fee  washable  to  the 
satisfaction  of  A's  creditors.     Flym  v.  William*,  7  fced.,  32. 

5!).  The  act  against  the  fraudulent  alienation  of  property 
makes  the  fraudulent  conveyance  absolutely  void,  and  in  that 
way  prevents  the  passing  of  any  estate  as  against  creditors  Ibid. 
(See  Rev.  Code,  ch.  50,  see.  1.) 

60.  Under  the  statutes  of  Rliz.  voluntary  conveyances  to  chil- 
dren, as  such,  are  not  absolutely  void  as  to  creditors;  ami  to  make 
them  void.it  must  be  shown  that  the  maker  of  the  deed  was 
indebted  at  the  time,  or  became  so,  so  soon  afterwardsas  to  con- 
nect tin/  purpose  of  making  the  deed  with  that  of  contracting- the 
debt  and  defeating  it.  By  indebtedness  in  such  case,  is  not 
meant  a  debt  of  trifling  amount  in  comparison  to  the  donor's 
estate,  but  he  must  be  "greatly  indebted,"  or  at  least  he  must  owe 
some  debt  that  remains  unpaid,  and  will  remain  so,  if  the  con- 
veyance he  sustained.      Smil/i  v.   li'roris,  7  Il'ed..  .'ill. 

61.  If  a  father,  who  conveys  land  to  a  son,  he  indebted  at  the 
time,  that  does  not  avoid  the  deed,  provided  the  father  pay  that 
debt,  or  if  he  retain  property  sufficient  to  pay  the  debt,  and  out. 
of  which  the  creditor  can  raise  the  money,  when  he  seizes  the 
land  conveyed  to  the  child.  Ibid.  (For  the  law  on  the  subject 
at  this  time,  see  Kev.  Code,  ch.  50,  sets.  1  and  :i. ) 

62.  An  indulgence  tor  a  year,  upon  obtaining  a  real  security 
for  an  existing  debt,  which  is  necessarily  made  public  by  regis- 
tration, is  not  so  unreasonable  as  to  raise  a  legal  presumption  of 
an  intention  to  hinder  a  creditor  by  the  security.  Lee  v.  Flan- 
nagan,  7  [red.,  471. 

(!,">.  On  a.  question  of  fraud  as  to  a  deed  in  trust,  &c,  it  is  a 
proper  subject  of  enquiry  by  the  ju¥y,  whether  the  sale  was  to  bo 
m  convenient  time,  under  all  the  circumstances  of  the  parties. 
IHd. 

64.  Where  a  deed  in  favor  of  one  creditor  is  made  for  the 
purpose  of  defeating  another  creditor,  it  is  fraudulent ;  but  it  is 
not  so  when  the  loss  of  the  latter  is  merely  a  consequence  of  the 
preference  given  to  a  just  debt.     Ibid. 


FRAUD.— I.  629 

65.  It  would  seem  that  a  mortgage  of  land  For  a  just  debt 
Cannqt  be  a  fraud  upon  another  creditor,  since  the  act  of  1812, 
because  it  cannot  obstruct  his  remedy,  by  a  sale  of  all  that  under 
any  citcum stances  ought  to  be  sold,  namely,  the  debtor's  whole 
interest  in  the  premises.     Ibid. 

66.  Where  a  son,  being  insolvent,  conveyed  property  to  his 
rather  for  an  apparently  valuable  consideration,  and  was  per- 
mitted to  remain  in  the  continued  possession  and  exercise  of 
ownership  over  it  for  a  number  of  years,  a  presumption  of  fraud 
is  raised,  either  that  the  conveyance,  though  absolute  upon  Its 
face,  was  not   bona  fide  for  the   benefit  oi  the   father,  but  upon 

trust  for  the  insolvent  vendor  or  donor,  or,  at  the 

liar   there  was  intention    to  give   the   son  a   false  credit. 

This  presumption,  however,  is  not  a  conclusive  legal  one  estab- 

l,  out   must   be   submitted  to  a  jury.     Slater. 

Bell,   ne,  8  I  red.,  139. 

117.  Where  a  deed  was  made-  in  trust  to  secure  creditors,  and 
it  was  stipulated  in  it  that  a  sale  should  not  take'  place  for  three 
years,  and.  in  the  mean  I  <:  in  trust  should  remain 

in  pi   i     of  the  property,  consisting  oi'  land,   slaves,   &c, 

and.  on  the  trial  of  a  suit,  the  creditor  impeaching  the  trust  ad- 
mitted thai  there  was  no  actual  fraud,  but    conte.n  led    that  the 
ice,  fraudulent  in  law,  it  thatwhether 

tl        leed  was  fraudulen     or  not  was  a  question  for  the 
under  all  tin.  i  court  could  not,  from 

what  appeared  on  the  face  oi'  the  deed,  say  it  was  fraudulent  in 
law,  because  there  might  be  circumstances  in  which  such  a  deed 
would  be  good,  and  the  creditor  had  admitted  that  it  was  not 
in  fact.     Hardy  v.  Skinner,  9  [red.,  191. 

68.  V,  here  a  deed  is  absoh  te  <  lleged  that 
it  was  on  a  seci  il  trust  for  tic  debtor,  with  intent  to  defraud  his 

irs,  it  must  be  hat  to  the  jury  to  ascertain  the  existence  of 
such  trust;  but  where  a  tion  by 

ir,  and  expr.  ss^s  on  its  Eaj  e  thai  it  was  made  for  the  ben- 
efit of  the  donor  and  his  family,  the  court  can.  ii  self,  pr< 
it  fraudulent  and  void,  as   againsl    a    creditor    Ma  a    existing. 
Stui  div  vat  v.  Davis,  9  [re3.,  365. 

69.  Where  an  agreement  was  made  between  a  father  and  his 

land  at  execution  sale,  at  an 
under  value,  for  his  use,  and  for  the  purpose  of  kei  pi 

Id,  that  a  purchase  by  the  sons  under  such  cir- 
cumstances was  fraudulent  and  void,  as  against  creditors,  whether 
urniahed  by  the  father,  or  paid  out  of  their  own 
mean>.  ■,-.  Allen*  1<>  [red.,  203. 

70.  before'  file  act  of  1840,  ch.  28,  ^voluntary  conveyance  of 
property,  even  to  a  child,  could  be  upheld,  to  defeat  an  existing 
creditor,  if  the  creditor  could  find  no  other  property  out  of  which 


630  FRAUD.— I. 

to  obtain  satisfaction.     Houston  v.  Bogle,  10  Ired.,  496.     (See 
Rev.  Code,  ch.  50,  sec.  3.) 

71.  The  act  of  1840,  ch.  28,  applies  onfy  to  voluntary  convey- 
ances made  after  the  act  went  into  operation.  Its  application  to 
prior  voluntary  conveyances  would  lie  unconstitutional,  as  it  is 
not  the  province  of  the  legislature,  but  the  judiciary,  tio  declare 
•what  the  law  was  before  the  passage  of  an  act.  The  legislature 
cannot  divest  vested  rights.     Ibid. 

72.  A  man,  being  bound  to  support  his  father,  conveyed  a 
tract  of  land  to  his  brother,  in  trust,  to  perform  the  conditions 
of  that  bond  in  the  first  place,  and  then,  nut  of  the  proceeds  of 
the  land,  to  pay  (lie  other  creditors  of  the  maker  el'  the  deed. 
In  the  deed  was  contained  the  following  clause:  "The  manner 
of  executing  the  deed,  as  to  the  support  of  my  father,"  in  left  to 
the  discretion  of  the  maker  of  the  deed.  If  was  held  that  this 
did  not  make  the  deed,  on  its  face,  fraudulent  in  lav.-,  for  it  re- 
served to  the  maker  no  control  over  the  fund,  but  only  the  man- 
ner in  whieh  the  lather  should  lie  supported;  and  further,  that 
the  fact  that,  the  debt  to  the  father  was  prospective,  as  well  as 
immediate,  did  not  make  it  illegal  to  give  it  the  preference. 
Gibson  y.  Walker,  11  Ired.,  327. 

73.  Where  a  man  makes  an  absolute  conveyance  of  a  chattel, 
purporting  to  be  either  a  sale  or  a  gift,  and  continues  for  a  long 
time  in  the  possession  of  the  chattel,  so  purported  to  be  convey- 
ed, this  creates  in  law  a  strong  presumption,  on  which  the  jury 
should  find  the  conveyance  fraudulent  as  against  creditors,  un- 
less opposing  and  explanatory  circumstances  should  rebut  the 
presumption.     Foster  v.    Woodfin,  11  Ired.,  339. 

74.  Fraud  is  never,  exclusively,  a  question  of  fact:  that  is,  in 
the  sense  of  leaving  it  to  the  uncertain  judgment  of  jurors  to 
give  to  the  intent  to  convey  upon  a  secret  trust,  or  to  the  fact  of 
credit  being  given  to  the  grantor  upon  his  continuing  in  pos- 
session, such  effect  as  to  them,  in  each  case,  may  seem  proper; 
but  on  the  contrary,  the  effect  of  such  intent,  or  false  credit,  if  in 
fact  existing,  depends  upon  the  fixed  principles  of  the  law. 
Ibid. 

lb.  Where  a  deed  of  trust  for  the  payment  of  debts  conveyed  a 
cotton  factory,  &c,  and  in  the  deed  were  provisions  that  the 
maker  of  it  should  retain  possession  for  eleven  months,  and  during 
that  time  his  family  might  be  supported  out  of  the  proceeds  of 
the  factory;  it  was  held  that  these  provisions  did  not  make  the 
deed  fraudulent  in  law,  upon  its  face,  but  as  the  provisions 
might  have  been  for  the  benefit  of  the  creditors,  as  well  as  of 
the  debtor,  the  question  of  fraudulent  intent  was  one,  upon 
which  the  jury  should  decide  under  all  the  circumstances. 
Yomig  v.  Booe,  11  Ired.,  347. 
76.  Although  a  deed  is  made  to  include  more  land  than  was 


FRAUD.— I.  631 

si  ild,  it  is  in  it  on  that  account  fraudulent,  but  is  only  void  for  the 
excess.     Judges.  Houston,  12  Ired.  108. 

77.  Where  a  deed  of  trust,  conveying  a  debtor's  property  for 
the  satisfaction  of  certain  creditors,  is  necessary  to  support  an 
action  against  persons  claiming  as  purchasers  under  execution 
against  the  grantor^  audit  is  not  shown  that  independent  of  the 

d  the  grantor  had  enough,  at  the  date  of  the 
deed,  to  satisfy  other  creditors;  the  party  relying  upon  the  deed 
must  produce  evidence  of  the  existence  of  the  debts  therein 
mentioned,  as  the  bonds,  notes,  judgments,  &c,  or  at  L  i  I  of 
such  an  amount  ot  them  as  will  sho"w  prima  facie  that  the 
transaction  ''•••.     And  when  this  prima  facie  evidence 

has  been  given  by  the  grantee,  the  onus  of  proving  any  fraud, 
is  thrown  upon  the  party  alleging 
sue  h  fi  "e,  12  [red.,  287. 

78.  '  titutes  fraud  is  a  question  of  law.  In  some 
cases  il  ■-  ',  nt,  when  it  is  the  province  of  the  court  so  to 
adjudj  ithing  to  do  with  it.     In  othei 

;i  variety  of  circumstances,  arising  from  the 
motive  and  intent,  and  then  it  must  be  left,  as  an  open  question 
"1   fa  i!       i'i;     wi  to  what,  in  law,  eousti- 

tuti  In    other  cases,   again,   there-  is  a  presumption  of 

fraud,  iy  be  rebutted;  and  then,  if  there  be  evidence 

tending  to  rebut  it.  that  must  be  submitted  to  the  jury;  but  if 
there  be  no  such  evidence,  it  is  the  duty  of  the  court  so  to  ad- 
judge, :  upon  the  presumption.  Hardy  v.  Simpson,  13 
Ired.,  132. 

79.  When  A  made  a  fraudulent  deed  of  trust  of  "certain  prop- 
erty to  •',  and  afterwards  for  a  fair  price,  and  l,„  afide,  conveyed 
the  pn  jr  rty  to  B,  it  was  held  that  B  acquired  a  good  title,  not- 
withstanding the  previous  fraudulent  transaction.  Whit  v 
White,  L3  [re  L   265. 

80.  A  bona  fide  purchaser  of  personal  property  without  notice 
acquire  -Me,  though  his  vendor  may  have  made  a  prior 
fraudul  ancetoa  third  person.  Plummew.  Worley, 
13  [red.,  423. 

81.  Though,  ordinarily,  he  who  alleges  fraud  must  prove  it,  the 
rule  di  i.  e  nut  extend  to  a  case  where,  upon  a  question  of  consid- 
eration in  the  sale  of  a  slave,  the  vendor,  vendee  and  subscribing 
witness  thereto  were  brothers-in-law.  and  the  vendor,  at  the  time, 
was  sued  for  debt,  and  was  actually  insolvent.  Satterwhite  v. 
Hicks,  Busb.,  105. 

82.  A  deed  of  giftjlnay  be  fraudulent  as  to  creditors,  tHbugh 
the  donor,  al  the  time  of  the  gift,  honestly  believed  that  he  had 
broperty  sufficient  to  satisfy  all  his  debts  then  existing,  if  in  tact 
he  was  mistaken;  and  this  principle  is  nut  altered  by  the  act  of 
1840,  eh.  28.  Black  v.  Sunders,  1  Jones,  67.  (See  Rev.  Code, 
ch.  50,  sec.  3.) 


632  FRAUD.— I. 

83.  If  there  be  an  existing  debt,  and  the  debtor  make  a  volun- 
tary conveyance,  and  afterwards  become  insolvent,  so  that  t ac- 
creditor must  lose  his  money,  unless  the  property  conveyed  eari 
be  reached,  such  voluntary  conveyance  is  presumed,  as  a  matter 
of  law,  to  be  fraudulent.     J  hid. 

84.  The  act  of  1840,  ch.  28,  only  requires  the  question  of  fraud 
to  be  submitted  to  the  jury  as  an  open  question  of  fact;  in  cases 
where  property  fully  sufficient  and  available  to  pay  all  creditors  is 
retained  by  the  donor.  Ami  twenty-two  negroes  and  two  small 
tracts  of  land,  valued  at  $7,250,  retained  in  such  a  case,  is  not, 
within  the  intent  of  the  act,  sufficient  and  available  to  pay  debts 
amounting  to  $6,848.     Ibid. 

85.  Where  a  father,  who  was  in  embarrassed  circumstances, 
sold  to  his  two  daughters  who  lived  with  him,  three  slaves  fora 
fair  price,  a  pait  of  which  was  paid  down,  and  the  remainder  waB 
to  be  paid  towards  bona  fide  debts  which  the  father  owed,  and 
which  they  afterwards  did  pay,  it  was  held  that  this  was  not  a 
fraud  in  law  upon  the  rights  of  a  <  reditor,  existing  at  the  time 
of  the  transaction,  so  as  to  authorize  the  court  to  declare  it  so. 
Jenkins  v.  Peace,  1  Jones,  413. 

86.  A  provision,  in  a  deed  in  trust,  for  the  postponement  of 
the  sale  of  the  property  for  nine  months,  and  then  to  be  sold  on 
a  credit  of  six  mouths,  is  not  a  fraud  in  law,  authorizing  the 
court    to  declare    the    deed,  to   be    void  on   its  face.     Gilmer  v. 

rdt,  1  Jones,  559. 

■ST.  Where  an  insolvent  debtor  transferred  his  effects  to  an  in- 
fant son.  upon  an  agreement  made  bona  fide  that  he  was  to  take 
his  son's  notes  with  security,  and  that  his  son  should  pay  certain 
debts  contracted  by  them  both,  as  a  firm,  it  was  held  that  the 
transfer  was  fraudulent  in  law  and  void  as  to  creditors,  because 
the  son  was  an  infant,  against  whom  the  law  did  not  afford  any 
remedy.     McCoihl  v.  Hammond,  2  J   i 

88.  A  voluntary  conveyance  of  personal  property,  in  trust  for 

the  donor's  wife  and  children,  is  void  as  to  creditors,  under  the 

statute  of  13th  Eliz.,  but  -passes  the   title  us   to  sub         nt  pur- 

'  .  .  v.  Brice',  3  Jones,  85.     (See  Rev.  Code,  ch.  50, 

see.   1. ) 

<S!h  Where  a  father,  finding  himsell  overwhelmed  with  debt, 
conveyed  to  Ins  son  negroes  ;md  other  property  worth  $6,000,  in 
consideration  that  the  son  would  undertake  to  pay  debts  amount- 
in-'  to  only  $4,000,  it  was  held  that  the  law  raised  a  presumption 
that  the  transaction  was  fraudulent,  and  if  there  were  no  rebut- 
ting circumstances,  the  court  should  instruct  the  jury  to  find 
fraud.     Jessupv.  Johnston,  3  Jones,  335. 

90.  A  creditor  can  only  take  advantage  of  a  voluntary  and 
fraudulent  conveyance,  by  reducing  his  claim  to  a  judgment  and 
seizing  the  property  under  an  execution.  Green  v.  Komegay,  4 
Jones,  66. 


FRAUD.— I.  633 

91.  Whore  the  question  was,  whether  a  conveyance  from  a 
father  to  his  daughter  was  voluntary  ami  void  as  to  creditors, 
held  that  an  instruction  to  the  jury  was  proper,  which 
stated  that  "where  a  parent  greatly  embarrassed,  which  embar- 
nl  i  mis  in  insolvency,  makes  a  conveyance  to  a  child,  it 
devolves  upon  the  child  to  show  that  she  gave  a  fair  price  for 
the  property,  actually  paid  either  in  money  or  money's  worth.'- 
Black  v  >".  IdiVi  11,  4  Jones,  150. 

Hi'.    Where   a  daughter  and   her  ,husl  and    convey  a  tract   of 
laud  to  her  lather,  as  to  which  there  was  seme  doubt  whether  ir 
belonged  to  him  or  to  the  daughter,  whereupon  he  eon 
tract  of  land  to  her,  it  teas  held  that  it  might  hi'  properly  left  to 
whether  the    father's  eon-  r,  and   upon  a 

ration   to  make    h  -    editors. 

Ibid 

93.  Where,  upon  a  question  whether  a  certain  deed  was  frau- 
dulent arid  void  as  to  creditors,  i  hand   were 

..  in  opposition  to  M  (1  was  proved  by  the  grafitee 

d  to  pay  tic  full  i  erty,  and  had 

Uy  paid  all  but  a  small  amount,  it  i  rroneous 

in  the  if  fraud  turn  entirely  upon  the 

th   small  balance  of  the  purchase  money.  Felton 

v.  W  ■-  dul.      ■ 

94.  Where  the  fraudulent  donee  old,  trad  of  Ian  I  m  deadeed 
of  trust  of  the  same  to  to  a  third  person,  under 
which  the  land  was  sold  for  a  valuabli   i  m  and  with- 

■  fraud,  and  the  pure!  I  to  the 

>r  the  purchase  m he  1  rustee, 

uotice  of  tl  erwards,  an  ; 

i  a  him.  did  uol  affect  his  title,  y,  ,  \ '%  >. 
[ones,  12*. 

95.  Whi    i                                           everal    f<  ig  in    a 
of  trust,  it  was  lield'va   a   i   ti     by  the  trustee  to   recover 

1    •  the  deed  was  void   in   tatp,  as  againsl    cred- 
there  were  other  defbts  included  which 
were  bona  Jide,*and  although  it  did  not  appear  that   the  trustee 
ted  in  the  fraud.     Stone  v.  Marshall,  7  Jones,  300. 

96.  A  deed  oftt  ted  an  individ- 

the  purpose  ol  gaining  time  at  the  exj ol   -  reditors, 

■  ty  to  advantage,  and  pre-'  eni  a  sac- 
rifice h  ■■•:■  cash,  when  the  company  or  individual  has  the 
yrces  from  which  enough  tnighl  be   realized  to 
.  i-   fraudulenl    ami  void  as  againsl    ereditors. 
7.'.;  don  v  I  "/.■■':  //.  7  Jones,  did. 

97.  Where  a  lather  who  was  insolvent,  executed  a  deed  to  a 
son  who  was  under  age,  and  who  paid  him  therefor,  partly  in 
money  which  he  had  earned  by  working  in  a  gold  mine,  and 
partly   by  his  note,  it  was  held  that  as  the   money  belonged,  in 


634  FRAUD.— I.-II. 

law,  to  the  father,  and  the  note  was  against  an  infant,  the  deed 
was  in  effect  voluntary  and  void  as  against  creditors.  Winchester 
v.  Reid,  8  Jones,  377. 

98.  A  deed,  absolute  on  its  face,  which  is  intended  to  operate 
as  a  mortgage,  is  void  in  law.  And  a  conveyance  of  property, 
absolute  on  its  face,  and  declared  to  be  made  in  payment  of  a 
debt,  is  a  mortgage,  provided  the  supposed  debt  is  merely  an 
obligation  on  the  part  of  the  vendor  to  indemnify  the  vendee 
against  an  event  which  has  nut  happened,  and  may  never  happen., 
Johnson  v.  Klurchison,  1  YVinst.,  21*2. 

99.  If  any  part  of  tie  consideration  of  a  deed  be  feigne&or 
fraudulent  as  to  creditors,  the  whole  is  void  as  to  them.     Ibid. 

100.  A  and  I!  were  partners  in  trad':  in  1851  and  1852;  and 
in  1857  an  account  was  taken  which  ascertained  that  a  balance 
was  due  to  B.  In  1855,  a  conveyance  was  made  by  A  without 
any  valuable  consideration,  and  it  wae  fold  to.be yoid  as  to  B, 
because  he  was  a  creditor  of  A  from  the  year  1852.     Ibid. 

lul.  A  deed  made  with  the  intent  to  convey  property  in  dis- 
charge of  a  su]  posed  debt,  which  is  in  law  not  a  debt,  isvbfeas 
against  creditors,  although  the  grantor  thought  he  owed  the. 
debt,  and  made  the  deed  in  discharge  of  it.      Ibid. 

See  (  Estoppel — By  deed.  5.)  (Execution — What  may  l>e  levied 
on  and.  sold  under  execution,  37.)  (Husband  and  wife — Of  mar- 
riage settlements  and  agreements,  1-4-5-6.)  (Mills — Proceed- 
ings by  petition  under  tie'  act  of  1809,  5.) 

II.       CONVEYANCES  FRAUDULENT  AS  Til  SUBSEQUENT  PURCHASERS. 

1.  A  conveyance,  which  is  fraudulent  as  to  creditors,  is  also 
fraudulent  as  to  purchasers;  and  though  the  purchaser  have  no- 
tice without  registration,  his  purchase  is  good,  for  if  he  have 
notice,  he  knows  the  contract  to  be  fraudulent  ami  void.  In- 
gles v.  Ddnaldson,  2  Hay,  57,  (222,)and  101,  261. 

2.  A  bona,  fid'  voluntary  gift  of  slaves  to  infant  children,  by  a 
father,  is  not  necessarily  fraudulent  as  to  subsequeift  purchasers, 
though  the  possession  of  the  slaves  remains  with  the  father, 
while  his  children  live  with  him.  The  statute  of  27  Eliz.,  in  fa- 
vor of  subsequent  purchasers,  relates  only  to  lands  and  the  pro- 
fits thereof,  and  not  to  personal  property.  Bell  v.  Blimey,  2 
Murph.,  171.     (See  Rex  Code,  ch.  50,  sec.  2.) 

3  A  prior  voluntary  conveyance  of  land  shall  prevail  against 
a  subsequent  purchase,  unless  the  latter  is  fair  and  honest. 
Hence  where  A,  in  consideration  of  blood  and  affection,  convey- 
ed his  lands  to  his  only  son,  and  afterwards,  for  a  valuable  con- 
sideration, sold  the.  same  lands  to  B,  but  with  the  intention  of 
defrauding  his  creditors;  it  was  held  t}fat  the  son  was  entitled 
to  recover  from  one  who  had  purchased  of  B,  with  notice  of  the 
circumstances.     Squires  v.  Biggs,  2  Car.  L,  R.,  274,  (253.) 


FRAUD.— IT.  635 

4.  A  purchaser  at  a  grossly  and  manifestly  inadequate  price 
is  not  such  an  one  as,  under  the  statute  of  27  Eliz..  eh.  4..  can 
avoid  ;i  previous  voluntary  conveyance;  but  to  constitute  a  pur- 
chaser entitled  to  the  benefit  of  the  statute,  the  purchase  must 

od  faith  and  for  a  fair  price;  and  this  the  court  should 
declare  as  a  rule  of  law.  and  not  leave  it  as  a  question  of  intent 
to  be  passed  upon  by  the  jury.  Fullendwider  v.  Roberts,  4  Dey, 
and  Bafc,  2*8.     (See  Rev.  Bode,  ch.  50,  sec.  2.) 

5.  The      urt  will  not  enter  into   the  question  of  the 
quacy  •  ideratioflf  as  per  se  vitiating  the  sale,  unless  it 
be  plain,  and 

ex1  n  mes  of  would  caK 

a  good  bargain  on  one   hand,  and  a  lad.  or  even  hard  bargain 

he  law  will  not  interfere.     But  \ 
I  or  i  ,         given,  that  every  body  who 

i    i  ate  will  exclaim  at   onoe,  "why,  he   has  g.     the 

lai  nly  one  tenth,  or  ;  I  lird, 

of,  the  value  were  given,  the  law  won  If,  if  it  did 

no!  terj  ly  and  without  qualification,  to  such  a  pei  -  m.  that 

h  [titled  himself  to  the   benefit  of  the  stature.     Ibid. 

6.  It  i  true  that  deeds,  void  by  reason  of  bad  faith 
as  to  or  are  also  void  as  to  purchasi  re.  Theyare  not  in- 
deed vi  they  are  so  as  to  creditors, 
but  by  reason  of  the  bad  faith,  which  alike  vitiates  them  fls 
against  both  purchasers  and  creditors.  There  may  be  instances, 
in  which  purchasers  would  not  stand  on  the  same  footing  with 
creditors.     Ibid. 

7.  The  term  ••purchaser"  is  not  used  in  the  stat.  of  27  Eliz. 
in  its  technical  sense,  for  one  who  comes  to  an  estate  by  his  own 
act.  It  is  to  be  received  in  its  popular  meaning,  as  denoting  one 
who  buys  for  money,  and  buys  fairly,  and  of  course  for  a  fair 
price.       Hid. 

S.  The  same  rub-  -prevails  in  equity,  as  at  law,  with  regard  to 
purchasers  setting  aside  voluntary  or  fraudulent  conveyances 
under  the  stat.  of  27  Eliz.     Ibid. 

9.  Fraud  and  good  faith  aregenerally  questions  of  intent,  and 
therefore  proper  for  the  jury,  whose  province  it  is  to  look  into 
the  mind  and  heart;  but  this  proposition  is  not  to  be  carried  to 
the  absurd  extreme  of  cutting  oil'  the  court  from  drawing  from 
admitted  facts  any  inference,  however  consonant  to  reason,  or 
necessary  it  may  be.  Hence  the  courts  have  laid  down  rules,  as 
laws  for  the  parties,  upon  the  question  of  inadequacy  of  price  in 
a  pureli aser  under  the  stat.  of  27  Eliz.     Ibid. 

10.  Thispowerof  the  court  is  not  a  novel  assumption,  nor  can  it  | 
prove  practically  dangerous  or  inconvenient.     There  will  be  dif-  * 
ferences  of  opinion  as  to  the  value  of  estates;  also  opposing  evi- 
dence as  to  the  price  paid  or  agreed  to  be  paid,  and  much  allow- 
ance is  to  be  made  for  the  unwillingness  ol  many  men  to  lay 


636  FRAUD.— II. 

out  money,  unless  they  get  a  bargain,  and  likewise  fov  their  re- 
luctance to  purchase  what  is  claimed  by  another,  and  cannot  be 
got  by  them  without  the  trouble  and  expense  of  litigation. 
These  are  all  proper  considerations  to  be  left  to  a  jury,  and  to  be 
weighed  by  them,  under  proper  information  from  the  court,  at 
the  same  time,  as  to  the  law.     Ibid. 

11.  If  one  of  several  heirs,  to  whom  a  tract  of  land  has  des- 
cended, make  a  voluntary  conveyance  of  it,  and  afterwards  the 
>if  hi  r  heirs  file  a  bill  for  the  sale  of  the  land  for  partition,  to 
which  the  voluntary  grantor  is  made  a  party  defendant,  and  a 
decree  be  made  ordering  a  sale  by  the  masted,  the  purchaser  at 
the  master's  sale,  for  a  valuable  consideration,  if  the  master's  re- 
port be  confirmee!,,  and  he  be  ordered  to  execute  a  deed  to  the 
purchaser,  will  be  a  purchaser  of  the  land  within  the  meaning 
of  the  statute  of  27th  Kliz  and  the  master,  in  executing  the  deed 
to  the  purchaser,  will  be  taken  to  have  acted  as  the  agent  of  the 
heir,  and  his  deed  will  defeat  the  previous  voluntary  conveyance. 
Ldtta  v.  Morrist  n,  1  [red.,  149. 

11'.  A  mortgagi   i  for  a  valuable  consideration  is  to  be  ponsid- 
ered  a  purchaser,  undei'theact  against  fraudulent  ■ 
Frwuitni  v.  Lewis,  5  [red.,  91. 

13.  Where  one  purchas  : :  laud  at  an  execution  sale,  at  a  great 
sacrifice,  in  corisequenoe  of'a  fraudulent  combination  between 
him  and  the  sheriff  who  conducted  the  sale,  as  by  reason  of  this 
fraud,  he  obtained  no  title,  so  a  bonajide  purchaser  from  him, 
without  notice  of  the  fraud,  md  for  a  valuable  consideration, 
will  likewise  obtain  no  tit]  irnes  v.  M-c  Is,  8  Ired,  292. 

14.  Under  the  act  of  1840,  ch.  28,  a  purchaser  from  one.  w]  o 
lias  previously  made  a  fraudulent  conveyance,  shall  not  be  pro- 
tected in  his  purchase,  unless  he  has  purchased  for  a  full  value, 
and  without  notice  of  the  fraudulent  conveyance.  Hiatt  v. 
Wade,  8  Ired,  340.     (See  Rev,  Cole,  ch.  50,  sec.  2.) 

15.  A  conveyed  to  B  a  tract  of  land,  by  a  conveyance  absolute 
on  its  face,  but  intended  merely  as  a  s  icurity  for  rnpriey  lent,  andB 
gave  a  bond  for  the  re-conveyance  of  the  land  when  the  money 
should  be  repaid;  afterwards  B  sold  the  land  to  C  for  a  full  and 
valuable  consideration,  and  then  the  creditors  of  A  sold  | 

by  executfon  and  1)  became  the  purchaser,  it  was  )ield  tha,t  D  on- 
ly acquired  the  right  of  A,  that  is.  the  right  to  demand  in  equi- 
ty a  conveyance  of  the  land  from  C,  upon  paying  what  rem  lined 
due  of  the  money  lent  by  B  to  A.    Kerr  v.  Davidson,  L0  Ired.,  269j 

16.  Under  the  act  of  1840,  ch.  28,  the  possession  by  a  fraudu- 
lent donee  cannot  operate  as  notice  of  the  conveyance,  to  him  of 

|  any  land,  but  such  tract  or  parcels  of  tracts,  as  may  be  occupied 
by  him  at  the  time  of  the  second  purchase ;  and  especially  it  can- 
not so  operate,  as  to  anv  parcels,  continuing  in  the  possession  of 
the  donor.  Wade  v.  Hiatt,  10  Ired.,  302.  (See  Rev.  Code,  ch. 
50,  sec.  2.) 


FRAUD.— II.-III.  637 

17.  Under  our  act  of  assembly,  a  man  cannot  be  held  to  be  a 
purchaser  for  a  valuable  consideration,  who  gives  for  the  land 
riot  more  than  one-half  or  two-thirds  of  the  value.  Harris  v. 
DeGrqffi    r  id,  11  Ired.,  89. 

18.  Although  one  of  the  debts  inserted  in  a  deed  in  trust  to 
secure  sevi  ral  creditors  be  fraudulent,  yet  the  legal  title  passes 
to  the  trustee,  and  his  sale  to  a  third  person  is  valid.     Ibid. 

19.  The  statute  of  27th  Eliz.,  which  aoauls  voluntary  convey- 
ances as  t'  ■  sul  sequent  purchasers,  extends  only  to  lands,  and  does 
not  embrace  personal  estate.  Garrison  v.  Brice,  3  Jones,  85.  S. 
P.,  Green  v.  Kornegay,  4  Jones,  66.  (See  Rev.  Code,  ch.  50, 
sec.  -.i 

20.  A  conveyance  of  personal  p  operty  made  with  intent  to 
defraud  creditors,  though  void  as  to  them  underthe  stat.  of  13th 
Eliz.,  is  good  as  to  subsequent  purchasers,  not  being  embraced 
in  the  27th  Eliz.     Long  v.   Wright,  3  Jones,  290. 

21.  A  hill  of  sale  for  a  personal  chattel,  absolute  on  its  face, 
but  intended  as  a  mortgage,  is  fraudulent  and  void  as  against  a 
purchaser  for  a  valuable  consideration,  by  force  of  the  statute, 
Rev.  Code,  ch.  37,  sit.  22.  requiring  mortgages,  &c,  to  be  regis- 
tered.    Dukes  v.  Jt  nes,  6  Jones,  14. 

See  (Fraud — Convevances,  agreements,  &c,  fraudulent  as  to 
creditors,  l7-18-39-43>44-80-88.) 

HI.   REMEDY  AGAINST  FRAUDULENT  CONVEYANCES. 

1.  Where  one  makes  a  fraudulent  conveyance  of  his  property. 
prior  to  the  recovery  of  a  judgment  against  him  for  a  tort,  the 
plaintiff,  although  he  was  not  a  creditor  at  the  time  the  conveys 
Hin  e  was  mad  .  is  entitled,  after  judgment,  to  a  sci.  fa.  underthe 
act  of  1806.  McErvrin  v.  Benhmg,  I  Hawks,  474.  (See  Rev. 
Codi  .  i  h    50,       js.  7.  8,  9.) 

2.  A  creditor  cannot  seize  property  fraudulently  conveyedj 
unless  by  virtue  of  his  execution.  The  statutes  against  fraudu- 
lent conveyances  by  debtors  can  only  be  carried  into  effect  by 
due  |  law.      WiMiford  v.  Conner,  1  Dev.,  371). 

.",.  The  a.,  given   By  the  act  of  1806,  is  dependent  upon 

the  original  action   of  the  creditor,  and  to  sustain    it,  the  first 

judgment    must  be  in   force:  and,  where  the  defendant  in   the 

1  .■■  tion  is  dead,  the  sci.   fa.  cannot  be  supported      Wintz 

v.  )Vrl>h.  '■>  Dev.,  27. 

4.  Where  a  sci.  fa.  suggests  a  fraudulent  conveyance  and  a  con- 
cealment of  property,  and  not  that  it  has  been  wasted  and  used. 
upon  a  verdict  for  the  plaintiff,  a  personal  judgment  against  the 
defendant  is  erroneous.     Ibid. 

5.  There  is  a  distinction,  as  to  relief,  between  cases  of  actual 
fraud  ana  fraud  presumed  only  from  the  conveyance  being  vol- 
untary; in  the  former,  equity  will  relieve;  but  in  the  latter  the 


638  FRAUD.— IIL-IV. 

creditor  is  left  to  his  legal  remedy.     0 'Daniel  v.    Crawford,  4 
Dev.,  197. 

6.  A  creditor  must  establish  his  debt  by  a  judgment,  before  he 
can  raise  the  question  of  the  validity  of  a  conveyance  made  by 
his  debtor.  The  judgment  will  be,  however,  only  prima  facie 
and  not  conclusive  evidence  against  a  party  claiming  under  the 

'  ir  he  may  show,  if  he  oan,  that  the  recovery  was  el  i  cted 
by  covin  and  collusion,  for  a  pretended  and  not  a  real  debt. 
Hqfner  v  Irwin,  4  Ired.,  529. 

7.  The  act  of  1806,  Rev,  Code,  eh.  50,  sec.  7,  was  never  intend- 
ed to  bring  in  one  who  holds  adversely  to  the  debtor,  and  com- 
pel him  td  make  a  declaration  of  his  title,  in  order  to  found  an 
issue  on  it,  to  try  whether  it  is  his  property  or  that  of  the  debtor. 
In  order  to  bring  a  party  within  the  scope  of  the  act  of  1806,  it 
must  appear  that  he  is  connected  with,  or  holds  under,  the  title 
of  the  fraudulent  debtor,  or  upona  secret  trust  for  him.  Morrison 
v.  McNeill  6  Jones,  450. 

8.  Where  one  owned  and  possessed  slaves  for  fifteea  yearsj 
and  they  were  run  out  of  the  State  by  the  owner,  and  tin-  defen- 
dant, who  was  a  brother-in-law  of  the  owner,  took  them  from  the 
place  where  the  owner  had  left  them,  and  carried  them  to  a  dis- 
tant state  and  sold  them,  and  received  the  money  tor  them  about 
the  time  the  plaintiff  obtained  a  judgment  against  the  owner,  it 
was  held,  in  a  proceeding  against  the  defendant  under  the  act  of 
1806,  that  there  was  some  evidence  to  be  submitted  to  the  jury 
that  the  defendant  held  the  proceeds  of  the  slaves  in  secret  trust 
for  the  debtor,  in  order  to  enable- him  to  defraud  his  creditors. 
Morrison  v.  McN&SH,  8  Jones,  45. 

IV.       IX  THE  REMOVAL  OF  DEI1TOKS. 

1.  In  a  suit  brought  on  the  act  of  1796,  for  the  removal  of  a 
debtor,  a  personal  notice  to  the  creditor,  instead  of  an  advertise- 
ment, was  deemed  sufficient.  So  the  fact  of  advertisement  may 
be  proved  on  the  trial,  without  the  certificate  of  an  advertise- 
ment by  a  justice  of  the  peace.  Roberts^.  Erwin,  2  Hawks,  4.s. 
(The  law  on  this  subject  is  altered.  See  Rev.  Code,  ch.  50, 
sec.  14.) 

2.  In  an  action  at  common  law  for  removing  a  debtor,  the 
Bingle  act  of  assisting  the  debtor  to  remove,  without  something 
more  alleged  and  proved,  is  not  sufficient  to  rendera  person  liable 
for  a  debt  due  by  the  person  removed,  although  that  assistance  may 
have  been  given  with  a  fraudulent  intent;  because  it  is  a  case  in 
which  a  plaintiff  cannot  state  the  nature  and  extent  of  his  inju- 
ry, it  being  quite  uncertain  whether  he  has  lost  the  whole,  or 
any  part  of  his  debt;  and  it  is  necessary  for  a  plaintiff  to  state  in 
his  declaration  not  only  that  he  is  injured,  but  how  he  is  injured. 
Gardiner  v.  Sherrod,  2  Hawks,  173. 


FRAUD— IV.  639 

3.  The  act  of  1820,  relative  to  the  removal  of  debtors,  must  be 
considered  a  total  repeal  ofthe  act  of  1796  on  the  same  subject: 
and,  therefore,  a  plaintiff,  who  sued  out  a  writ  in  1821,  and  de- 
clared upon  an  act  committed  in  LSl<s,  and  under  the  act  of 
1796,  was  non-suited.     Stephenson  v.  Mcintosh,  2  Hawks,  -127. 

4.  Where  a  debtor  .removed  out  of  a   county,  with  intent  to 

bo  knowing  of  such   intent. 
helps  him  by  carrying  him  or  his  property  a  part  of  the  way,  in 

'  ounty,   1 i    leg  b  iund 

for  It  -  debts,  under  the  act  on  that  subject,  although  he  did  not 
convey   the   debtor   or  his   goods   entirely  out  of  the  county 
into  another.     Godsey  v.  Bason,  8   Ired.,  260.     (See  Rav. 
eh.  50,   ec.  14.) 

5.  Where  a  person,  who  has  removed  adebtorout  of  acouaty, 
is  sued  by  a  creditor,  it  is  not  v.<  cessary  to  showthat  this  person 
had  a  kiin'vl  •  '      of  a  particular  debt  due  by  the  debtor,  but  it  is 

ircumstances  of  the  case  induce  the  jury  to  be- 
lieve, that  tii''  r  imoval  was  made  with  a  view  to  defraud  cred- 
itor*.    Ibid. 

(!.  The  act  is  rerfledial,  for  the  prevention  of  fraud  on  credi- 
tors, and  is  entitled  to  a  liberal  interpretation.       Ibid. 

7.  Tb  of  damages  under  the  act  is  the  amount  of 
the  d<  U  due  by  the  debtor  to  the  plaintiff     Ibid. 

8.  The  bail  of  a  person  arrested  under  a  ca.  .so.  may  maintain 
an  action  bh  the  ease  ;it  common  law.  against  one  for  fraudulent- 
ly aiding  and  assisting  the  principal  to  remove  from  the  county, 
in  consequence  whereof  he  had  to  pay  the  debt  sued  on.  March 
v.  Wilson,  Busb.,  14:1. 

'.i.  There  is  no  distinction  between  frauds  consisting  mainly  in 
acts,  and  those  which  consist  mainly  in  words,  the  criterion  of 
the  plaintiffs  right  of  action  and  the  defendant's  liability  being 
that  the  one  should  have  been  damaged  in  consequence  of  the 
fraud  ofthe  ether.  Nor  is  ii  any  defence  to  the  action,  that  tne 
defendant  did  not  know  that  the  plaintiff  was  the  bail  of  the  per- 
BOJ    r  -I.  and  could  not.  therefore,  have  intended,  to  defraud 

him.      IL  <1. 

10.  A  surety  in  a  constable's  bond,  upon  which  there  has  been 
a  bn  tch,  but  no  judgment  obtained  therefor,  and  no  payment 
by  him.  is  not  a  ofegditor,  so  as  to  entitle  him  to  recover  against 
a  person  for  fraudulently  removing  his  principal.  Booe  v.  Wil- 
8on,  1  Jones,  182. 

11.  The  i!  '  advising  a  debtor  to  run  away,  though  the  ad- 
vice be  given  to  hinder  anil  delay  creditors,  is  not  equivalent  to 
aiding  and  assisting  him.  and  will  not  sustain  an  action  under 
the  statute  against  the  fraudulent  removal  of  debtors.  Wiley  v. 
McRee,  2  Jones,  349.     (See  Rev.  Code,  ch.  50,  sec.  14.) 

12.  "Whore  one  persuades  a  debtor,  who  is  temporarily  absent 
from  the  county  of  his  residence,  not  to  return  to  that  county. 


640  FRAUD.— IV.-V.. 

but  to  go  off  to  distant  parts,  and  promises  if  he  will,  do  so.  to 
send  his  trunk  from  the  place  of  his  residence  to  him,  and  does 
afterwards  send  it,  and  also  aids  him  with  money  and  by  going 
a  part  of  the  way  with  him,  and  all.  this  is  done  to  enable  the 
debtor  to  evade  his  creditors,  he  will  be  liable  under  the  act, 
Rev.  Code,  ch.  50,  see.  14.     Moore  v.  Sogers,  3  Jones,  90. 

13.  Idie  going  with  an  absconding  debtor  to  a  railroad  depot, 
where  he  took  passage,  in  the  train,  and  the  taking  his  horse 
back  to  his  residence,  knowing  of  the  debtor's  fraudulent  inten- 
tion to  abscond,  is  such  aiding  and  assisting  as  will  make  the 
party  liable  under  the  act.     Moss  v.  Peoples,  6  Jones,  140. 

14.  Where  a  party  having  the  money  of  a  father  in  his  hands 
for  a  lawful  purpose,  paid  it  to  his  son  to  enable  him  fraudulent- 
ly to  abscond  from  his  creditors,  the  mere  fact  that,  in  a  set- 
tlement of  accounts  between  the  father  and  the  person  who  as- 
sisted his  son,  the  father  allowed  the  hitter's  bill  for  the  money 
thus  applied,  will  not  amount  to  such  a  ratification  of  the  act  <<<i 
assistance  as  to  subject  the  father;  for  the  maxim  of  munis  rati- 
habitio,  &c,  does  not  apply,  unless  the  act  ratified  is  to  the  use 
or  for  the  benefit  of  the  person  sanctioning  it.  Mdofre  v-  Rogers, 
(>  Jones,  297. 

15.  Where  a  person  with  his  horse  and  buggy  carried  a  debtor 
to  a  railroad  station,  and  there  procured  money  lor  him  to  (lia- 
ble him  to  leave  the  state,  knowing  that  he  was  going  to  avoid 
his  creditors;  it  icas  field  that  lie  was  guilty  of  a  fraudulent  re- 
moval within  the  meaning  of  the  statute.  Mqffit  v.  Burgess,  8 
Jones  342. 

V.   FRAUD  IS  THE  EXECUTION  OP  A  DEED  OR  OTHER  INSTRUMENT. 

1.  If  one  be  so  drunk  that  he  does  not  know  what  lie  is  about, 
and  in  that  situation  is  iiulueed  to  sign  a  paper  fora  debt  he  did 
not  owe,  it  is  a  fraud;  and  fraud  practiced  upon  a  man,  drunk 
or  sober,  will  vitiate  the  instrument  signed  by  him.  King  v. 
Bryant,  2  Hay.,  394,  (591.) 

2.  Fraud,  in  obtaining  a  bond,  will  vitiate  it,  and  evidence, 
tending  to  show  such  fraud,  is  admissible  under  the  general  issue 
of  non  est  factum.     Perry  v.  Fleming,  2  Car.  L.  1!.,  45s,  (344.) 

3.  Where  a  sheriff's  deed  conveyed  three  hundred  acres,  but 
it  was  proved  that  he  intended  to  convey  only  one  hundred  and 
twenty,  and  would  not  have  executed  the  deed,  had  not  the 
courses,  of  which  he  was  ignorant,  been  inserted  in  such  a  way 
as  to  deceive  him  as  to  the  quantity,  //  was  held  that  fchel'deed 
was  not  conclusive,  and  that  the  question  ought  to  have  been 
left  to  the  jury,  to  say  whether  or  not.  it  was  fraudulently  ob- 
tained for  of  such  question  the  court  of  law  had  cognizance  aR 
well  as  a  court  of  equity.      UvKr  ill  v.  Cheek,  2  Hawks.  343. 

4.  Fraud,  in  the  execution  of  a  deed,  may  be  averred  at  law ; 


FRAUD. — V.-  VI.  641 

but  fraud  in  the  consideration  can  generally  be  relieved  only  in 
equity,  except  where  the  conveyance  is  avoided  by  statute.  Logan 
v.  Simmons,  1  Dev.  and  Bat.,  13. 

5.  In  an  action  at  law  against  the  maker  of  a  deed,  which  he 
aches  for  fraud,  the  only  fraud  he  can  allege  must  be  in 
procuring  the  execution  of  the  deed;  and,  therefore,  evidence 
that  lie  was  imposed  upon  by  the  other  party  in  a  contract,  the 
performance  of  which  this  deecr;  subsequently  executed,  was  in- 
tende  to  secure,  is  irrelevant  and  inadmissible.  Eeedv.  Mcore, 
3  Ired.,  310. 

>i.  .V  fraud  in  the  consideration   or  treaty,  on  which  a  deed  is 
obtained,  is  a  ground   fur  impeaching  it  hi  equity,  but  do 
avoid  it  at  law.     To  have  that  affect,  it  is  necessary  that  the  ex- 
ecution of  the  deed  should  be  obtained  by  fraud,  so  as  to 
a  case  for  tiie  defendant  on  the  plea  of,,  ■    .       act   m.     Can  >y  v. 
Troutman,  7  [red.,  155. 

7.   If  there  be  fraud,  not  in  the  execution  of  a  deed,  but  in  the 

ci  msid  rati  >n,  or  in  the  false  repri  sentation  of  a  collateral  fact, 

bh  ■  party  was  i  into  th  i  contract  by  ex 

ecutin  i  deed  will  be  valid  in  a  court  of  law 

Grant  v.  Hun  mch  r,  12  1  red,  25  i. 

Eo  avoid  a  deed  a1    lasv,  under  the  plea  of  non  est  factum, 
ad,  the  fraud  must  be  in  the  fact} 
.  by  substituting  one  paper  for  anotb   ,  so  as  to  show 
that  the  party  did  not  intend  to  execute  the  paper  he  was  made 
al  and  deliver.     Nickollsv.  Holmes,  1  Jones,  360. 

y.  A  d  in  a  court  of  law,  notwithstanding  any  fraud 

in  tlio  consideration  of  it,  or  in  the  isentation  of  a  col- 

lateral tact,  which  induced  the  party  to  -ait. a-  into  it.  It  is  only 
fraud  in  the  factum,  that  will  amount  taa  defence  in  a  courl 
of  Lav  .  t  Jones,  168. 

vi.     ...  -  w.i:-\ 

1.  Wh  aeiri  with  the  owner,  runs  up  the 

ty  ami  it  is  a  to  him,  ho  may  hold  it  against 

the  ov   ler,  because  '    :     ■  owner  cannot   re  ■•  iv  i 

t  his  own  fraud.  v.  Johnston,  2  Hay.,  328,  (498.) 

iction  sales,  rlythose  made  by  a  sheriff  under  a 

.  p.,  are  founded  on  th<  idea  ol  a  fair  competition  between  the 
;  and  as  tin  employment  oJ  puffers  i  a  raud  upon  t$e 
vendee,  s  i  an  associate  n  o!'  bidders  d  signed  to  stifle  competi- 
tion is  a  fraud  ■  vendor;  and  a  sale  effected  by  such  means 
is  void  even  a  lav  .  and  a  deed,  executed  i  i  consequence  of  it, 
conveys  no  title.  But  the  rule  is  different,  when  the  association 
lias  ma  for  irs  object  'ho  stifling  of  competition,  but  is  formed  be- 
cause a  single  person,  from  the  magnitude  of  the  purchase  oi 

41 


642  FRAUD.— VI— FREE  PEESONS  OF  COLOR. 

other  good  cause,  is  unable  or  unwilling  to  bid  on  his  own  ac- 
count.    Smith  v.  Greenlee,  2  Dev.,  126. 

See  (Fraud — Conveyance,  Fraudulent  as  to  subsequent  pur- 
chasers, 13.) 


FREE  PERSONS  OF  COLOR. 

1.  The  term  "free  person  of  color"  in  our  penal  statutes,  is 
to  be  understood  to  mean  a  person  descended  from  a  negro 
within  the  fourth  degree  inclusive,  though  au  ancestor  in 
each  intervening  generation  was  white.  State  v.  Dempsey,  9 
Ired.,  384.     (See  Rev.  Code,  eh.  107,  sec.  79.) 

2.  The  notice  required  by  the  act,  Rev.  .Stat.,  ch.  Ill,  sec.  65, 
to  subject  a  free  person  of  color  to  the  penalty  of  $500,  if  he 
shall  not  remove,  within  twenty  days,  must  be  served  personally; 
and  it  is  not  sufficient  if  only  left  at  the  dwelling  house  of  the 
party.  Siaie  v.  Jacobs,  2  Jones,  52.  (The  law  afterwards  changed, 
and  the  act  of  immigrating  into  the  State  made  a  misdemeanor. 
See  Rev.  Code,  ch.  107,  sec.  54,) 

3.  Under  the  79th  sec.  of  the  107th  chap,  of  the  Rev.  Code, 
.".  person  must  have  in  his  veins  less  than  one  sixteenth  part  of 
negro  blood,  before  he  will  cease  to  be  a  free  negro.  State  v. 
Chavers,  5  Jones  11. 

4.  "  Free  negroes  "  and  "  free  persons  of  color  "  are  generally, 
though  not  always,  mentioned  in  the  Rev.  Code,  eh.  107,  as  the 
same,  ami,  therefore,  an  indictment,  charging  the  defendant  asa 
"free  person  of  color"  with  carrying  arms,  cannot  be  sustained 
because  the  act,  Rev.  Code,  eh.  L07,  sec.  66,  uses  the  term  "free 
negroes."     Ibid. 

5.  The  comity  court,  under  the  power  to  grant  a  free  negro  a 
general  license  to  carry  a  gun,  may  grant  him  a  restricted  one, 
such  as  to  carry  it  only  on   his  own   land.     State  v.  Ii<  . 
Jones,  448. 

0.  A  free  negro  has  a  right  to  strike  a  white  man  to  protect 
himself  from  greatly  Lodily  harm  or  grievous  oppression.  Slate 
v.  Davis,  7  Junes,  52. 

7.  If  a  free  negro  sell  his  services  for  a  valuable  considera- 
tion, by  deed,  for  ninety-nine  years,  he  does  not  thereby  cease  to 
be  a  free  man.     Casey  v.  Sobdrds,  2  Winst.,  39. 

See  (Bonds — Of  the  consideration,  14.)  (Constitution — Acts 
which  have  been  declared  constitutional.  15-19.)  (Constitu- 
tion— Construction  of  various  clauses  oi  the  constitution,  12.) 
(Indictment — In  what  cases  an  indictment  will  lie,  75-87-98.) 
(Indictment— Form   and   matters    relating    thereto,    125-150.) 


FREE  PERSONS  OF  COLOR— FREIGHT,  &c.    643 

(Indictment — Of  the  trial,  verdict  and  judgment,  40-47-70.) 
(Insolvent  debtors — Proceedings  under  the  act  of  1822,  and  sub- 
sequent acts,  16.) 


FREIGHT. 

See  (Vessel,  7-11-12.) 


FUNERAL  EXPENSES. 

See   (Executors   and   Administrators — Of  their   liability   for 
funeral  expenses.) 


GAMING. 


I.  Horse  racing.  I    III.    What   gaming    is    made    indicta- 

II.  Gaming  contracts  other  than  horse  ble. 


ra'.-ni'j 


HORSE    RACING. 


1.  The  opinion  of  the  of  a  horse  race  (when  such 
racing  had  not  bei  ivas  held  not  to  be  conclusive; 
but    that   th  ■  irwards  examined  by  a  jury. 

tony  produced     lefoi  iams  v.   Gal 

..  i.  |  19.)  "  S.  P.,    Woor    7.  Sim     m,  1  Mui-ph.  33. 

2.  Where  the  bets  were  deposit  id  with  a  stakeholder,  he  was 

>n  to  1  rinnin         rty.     Ibid. 

3.  When  parties  enter  into  a  racing  contract,  it  will  be  gov 
erned  in  a  i  -1' racing.     McKenzie  v 

1  Hay.,  502,  (578.)     S.  C,  2  Hay.,  161,  (346.) 

4.  When  th  >  lecined  the  weight  to  be  car- 
ried it  must  be  proved  that  the  rider  was  weighed.  Gritcher  v. 
Parker,  2  Hay.,  171,  (360.) 

5.  When,  by  the  agreement  in  a  horse  race,  bond  with  security 
was  to  be  given  by  each  party  by  a  specified  time,  the  failure  of 


644  GAMING.— I. 

either  to    do  so,  by  the  time,  will  put  it  in  the   power  of  the 
other  to  declare  off.     Hunter  v.  Parka;  2  Hay.,  178,  (373.) 

6.  The  articles  specified  the  terms  of  the  race  and  money 
betted,  and  although  there  was  no  obligation  distinct  from  the 
articles,  yet  the  articles,  detailing  all  that  could  have  been  set 
forth  in  an  obligation  and  articles,  are  equivalent  to  the  bond 
required  by  the  act  of  1800,  ch.  21.  Hunter  v.  Bynum,  2  Hay., 
354,  (545.) 

7.  Before  the  winner  in  a  race  can  recover,  he  must  prove 
that  his  horse,  carried  through  the  paths  the  weight  he  received 
at  the  starting  poles.     Farrell  v.  Patterson,  2  Hay.,  362,  (555.) 

8.  If  a  race  is  in  be  run  at  A's  quarter  paths,  plaintiff  need 
in,!  prove  that  he  did  actually  run  a  quarter,  otherwise  if  the 
agreement  be  to  run  a  quarter  at  A's  paths.     Ibid. 

9.  If  the  articles  are  not  to  play  or  pay,  the  party  refusing  to 
vim  must  pay  half  the  sum  betted.  Ibid.  S.  P.,  Hunter  v. 
Bynum,  2  Hay.,  354.  (54:;.) 

10.  ln'an  action  of  debt  upon  a  racing  bond,  when  il  is  nut 
said  in  the  articles  whether  it  is  a  play  or  j  mi  race,  the  plaintiff 
is  only  entitled  to  half  the  sum  betted,  provided  the  defendahl 

i1  run,  and  he  must  recover  that  in  another  form  of  action. 
Hunter  v.  Stroucl,  2  Hay.,  403,  (608.) 

ii.  A  horse  racing  contract  must  be  in  writing,  and  parol  evi- 

is  not  aclrnisi  ibleto  contradict  it.     Sharpv,  Murphy,  Coni'. 

Rep.,  521,  (568.)     S.  P.  Moore  v.  Parker,  Ibid,  553.  (573.')  S.  C, 

1  Murph.,  37,  Gritcher  v.   Panned,  Conf.   Rep.  545,  (573.)     S.  ('.. 

]  Murph.,  22,  Jackson  v.  Anderson,  1  Murph.,  137. 

12.  .V  and  B  entered  into  a  covenant  to  run  a  horse  race  with 
C  and  !;  mi  a  certain  day  for  $500,  to  be  staked  in  bonds  with 
approved  security,  \  alone  executed  a  bond  with  security,  but 
gave  ('  and  1>  no  notice  of  it.  In  an  action  of  covenant  by  A 
and  B  against  G  and  I'.  //  was  held  that  they  could  not  recover, 
because,  1st,  tin  bond  staked  was  signed  by  A  and  not  byB; 
and,  2ndly,  ;  i  tits  had  no  notice  of  ii.  Hunter  v.  Jack- 
son, 1  Car.  Law.  Eepos.,  250,  (21.) 

13.  Under  the  act  of  1800  respecting  horse  racing  contracts,  a 
race  may  be  made  on  cue  day,  and  the  articles  of  the  race,  and 

In  bond  tor  the  money  bet,  may  be  reduced  to  writing  and 
signed  by  the  ]  arties  on  another  day;  but  the  contract  shad  not 
be  reduced  to  writing  on  one  day,  and  signed  by  the  partii  s  on 
a  subsequent  day,  the  act  declaring  "■that  all  such  contracts 
shall  be  reduced  to  writing,  and  signi  d  by  the  -parties  thereto  at 
the  time  they  arc  made.'      Brown  v.  Brady,,  2  Murph.,  117. 

14.  Where  the  articles  of  a  race  specify  the  sum,  but  say  noth- 
ing of  the  time  of  payment,  the  money  is  payable  on  the  day  of 
the  race,  and  must  then  be  staked.  Tinnen  v.  AUis<  n.  2  Car.  L. 
I!.,  107.  (205.) 

15.  A  horse  racing  contract  having  been  illegal  bv  the  act  of  1810, 


GAMING— I.-II.-III.  645 

it  W  i  s  held  that  one  of  the  betters  might  recover,  from  a  stakehol- 
der, money,  which  he  had  deposited  "with  him,  and  which  the  stake- 
holder, after  notice  not  to  do  so,  had  paid  over  to  the  party  who 
claimed  to  be  the  winner;  the  general  rule  being  that,  in  an  ille- 
gal transaction,  money  may  always  be  stopped  while  in  transitu 
to  the  party  claiming  it  under  such  illegal  transaction.  Wood 
v.  Wood,  3  Murph.,  172.  S.  1'.,  Forrest  v.  Hart,  Ibid,  458.  (All 
ag  or  wagering  en  horse  races  was  made  void  by  the  act  of 
1810.     See  1st  hew  Stat.,  ch.  51.) 

H.       GAMING  CONTRACTS  OTHER    THAN   IIORSE  RACING. 

1.  Money  lent  to  play  with  at  gaming,  or  to  pay  at  the  time 
of  loss  overable;  bul  it  is  otherwise  of  a  gaming  debt 

'  a  third  person  at  the  request  of  the  loser.     Moo 
.  Mar.,  52.     (See  Rev.  Code.  ch.  51.  sec.  2. ) 

2.  If  money  or  property  won  by  gaming  be  paid,  it  cannot  be 

id  ;  ack     .         ,'         .  2  Hay,   231.   (409,)  S.  P.,    Stowett 
-    7.   (484,)  Hodges  v.  Pitman,  2  Car.  Law 
(276.) 
;i.  A  p  irson,  having  no  interest  in  a  slave  who  was  sup 

lost,  pays  a  premium  and  has  him  insured,  the  transaction 
being   fair,  the   person   insured    m  being 

shown  that  the  slave  was  lost.  Shepherd  v.  Sawyer,  2  Murph., 
26.  (All  gaming  contracts  are  now  void.  Rev.  Code.  ch..  51. 
s  sc.  1-  | 

4.  A  judgment  of  a  justice,  won  at  cards,  cannot  lie  recovered 
back  un  ler  the  act  of  1784.     Hudspeth  v.  Wilson,  2  Dev.,  372. 

5,  Where  a  man  is  cheated  out  of  his  money,  though   it  be  in 

.:  at  a  game  forbidden  by  law,  he  may  recover  back  what 
he  has  paid,  irom  the  person  who  practiced  the  fraud  upon  him. 
[red.,   185. 
See  (Bonds — Of  the  consideration  10.) 

III.       WHAT    GAMING    IS    MADE    INDICTABLE. 

1.  The  playing-  at  cards  for  money  or  property,  in  a  counting 
ii  attached  to,  and  under  the  same  roof  with,  a  store  room  in 

which  spirituous  liquors  arc  retailed,  fills  within  the  act  of  1831, 
forbidding  the  playing  "at  any  game  of  cards  in  any  house 
where  spirituous  liquors  are  retailed,  or  any  outhouse  or  store 
attached  thereto,  or  any  part  of  the  premises  occupied  with  such 
house."  State  v.  T.  rry,  4  Dev.  and  Bat.,  185.  (See  Rev.  Code, 
ch.  34,  sec.  7."). 

2.  In  an  indictment  on  this  act,  it  is  sufficient  to  show  that  the 
spirituous  Liquors  were,  in  fact,  retailed  in  the  house  in  which 
the  playing  took  place;  and  it  is  no  defence  for  the  defendants 


646  GAMING— GENERAL  ASSEMBLY. 

that  the  retailer  has  not  lawfully  obtained  a  license  to  retail. 
Ibid. 

3.  Under  the  69th  section  of  the  34th  chapter  of  the  Kevised 
Statutes,  an  indictment  will  not  lie  against  one  for  playing  at  a 
game  of  cards  in  a  tavern,  if  he  do  not  bet  on  the  game,  though 
the  other  players  may  bet.  The  act  embraces  two  cases,  the 
playing  and  betting  at  cards  in  a  tavern,  and  the  merely  betting 
upon  a  game  played  by  others,  but  does  not  reach  the  case  of 
playing  without  betting.  State  v.  Sniitherman,  1  Ired.,  14.  (Play- 
ing at  cards  in  a  tavern,  &c,  upon  which  there  is  betting,  is  now 

table,  though  the  defendant  is  only  a  player  and  not  one  of 
etters.     See  Rev.  Code,  ch.  34,  sec.  75.) 

4.  Keeping  a  gaming  table,  called  "  shuffle  board,"  is  not  in- 
dictable under  the  act  concerning  gaming,  the  jury  having  found 
that  the  game  was  not  one  of  chance,  but  of  skill.  State  v. 
Bishop,  8  lred.,  266.     (See  Rev.  Code,  ch.  34,  sec.  72.) 

5.  The  game  of  ten  pins  is  not  a  game  of  chance,  and,  there- 

claying  at  it  is  not  indictable  under  the  act.      State  v. 
Gvpton,  8  Ired.,  271.     (See  Rev.  Code,  ch.  34,  sec.  72. 

6.  Under  the  statute  against  gaming,  the  place  of  gaming  and 
the  place  of  retailing  must  be  the  same  house,  or,  at  least,  parts 

if  the  same  establishment.  "The  premises"  mean  those  places 
only,  which  are  occupied  by  the  retailer,  with  the  house  in  which 
l;e  retails,  as  one  whole.  State  v.  Black,fi  Ired.,  378.  (See  Rev 
Code,  ch.  34,  sec.  75.) 

7.  Where,  upon  the  trial  of  an  indictment  for  unlawfully  play- 
ing cards  in  a  tavern,  it  appeared  that  the  room,  in  which  the 
game  was  played  by  the  defendants,  was  in  the  basement  of  the 
tavern  house,  but  had  been  let  by  the  month  for  a  shoe  simp, 
and  was  not  under  the  control  of  the  landlord,  it  teas  held  that 
it  was  not  an  indietable  offence  under  the  Revised  Code,  ch.  34, 
sec.  75,  even  though  the  owner  of  the  shoe  shop  and  his  wife 
were  boarders  at  the  tavern.     State  v.  Keisler,.  6  Jones,  73. 

8.  Persons  who  play  at  a  game  of  cards  on  which  there  is  bet- 
ling,  as  well  as  the  betters,  are  indictable,  if  the  playing  be  in  a 
tavern,  &c,  but  the  players  are  not  indictable,  if  neither  they 
nor  any  other  person  bet  on  the  game,  though  it  is  in  a  public 
tavern,  &c.  State  v.  Brann&n,  8  Jones,  208.  (See  Rev.  Code, 
ch.  34,  sec.  75.) 

See  (Indictment — When  an  indictment  will  lie,  26-31.)  (In- 
dictment— Form  and  matters  relating  thereto,  87-112.) 


GENERAL  ASSEMBLY. 

See  (Constitution — Construction  of  various  clauses  of  the  con- 
stitution, 13-14-17-18.) 


GENERAL  KULES.  647 

GENERAL   RULES 

PRESCRIBED  AT  JANUARY  TERM,  1815. 

The  Judges  of  the  Bupreme  court,  with  a  view  to  improve  the 
administration  of  justice  by  expediting  the  trial  of  causes,  and 
precluding  a  laxity  of  practice  tending  to  impair  the  security 
and  rights  of  the  citizens,  have  availed  themselves  of  the  power 
confided  by  the  act  of  Assembly,  (see  Rev.  Code,  ch.  33,  sec.  13,) 
and  established  the  following 

RULES  OF  PRACTICE. 

1.  (The  first  part  of  the  first  rule  was  temporary  and  is  omit- 
ted.) And  no  cause  in  equity  shall  hereafter  be  set  for  hearing 
until  the  testimony  shall  be  complefo  d. 

2.  That  in  all  suits  at  law  brought  on  for  trial  at  the  ensuing 
fall  t  mi,  or  thereafter,  declarations  shall  be  filed  before  the  trial; 
and  no  suit  shall  be  tried  after  that  period,  unless  tliis  rule  be 
complied  with. 

3.  That  in  all  causes,  civil  and  criminal,  where  no  evidence  is 
introduced  by  the  defendant,  the  right  of  reply  and  conclusion 
shall  belong  to  his  counsel. 

4.  Where  several  counsel  are  employed  on  the  same  side,  the 
examination,  or  cross-examination,  of  each  witness  shall  be  con- 
ducted by  one  counsel;  but  the  counsel  may  change  with  each 
bucci  issive  witness. 

5.  When  a  party  in  a  civil  suit  moves  for  a  continuance  on  ac- 
count of  absent  testimony,  such  party  shall  state,  in  a  written 
affidavit,  the  nature  of  such  testimony,  and  what  he  expects  to 
prove  by  it. 

6.  No  person  who  is  bail  in  any  suit,  either  civil  or  criminal, 
or  who  is  security  for  the  prosecution  of  any  suit,  shall  appear 
as  counsel  or  attorney  in  the  same  cause.  And  it  shall  be  the 
duty  of  tire  clerks  of  the  several  superior  courts  to  state,  on  the 
docket  for  the  court,  the  names  of  the  bail  and  security  for  the 
prosecution,  in  each  case. 

7.  Xo  entry  shall  be  made  on  the  records  of  the  superior 
courts  (the  appearance  docket  excepted)  by  any  other  person 
than  the  clerk,  or  his  regular  deputy. 

8.  In  all  cases  of  general  replication,  no  special  matter  shall 
be  heard. 

9.  From  and  after  the  next  term  of  the  supreme  court,  no  ap- 
plicant for  license  to  practice  law  in  the  courts  of  this  state  shall 
be  a  mined  except  during  the  terms  of  the  supreme  court. 
License  to  practice  in  the  county  courts  only  shall  Be  granted  in 
the  first  instance.     Nor  shall  any  person  be  admitted  to  practice 


S18  GENERAL  RULES. 

in  the  superior  courts,  until  one  year  after  having  obtained  li- 
cense to  practice  in  the  county  courts.     2  Car.  L.  R.  123. 

GENERAL  RULES  ADOPTED  AT  JUNE  TER3I,  1847. 

1.  All  applicants  for  admission  to  the  bar  must  present  them- 
selves for  examination  within  the  first  two  clays  of  the  re  pect- 
tive  terms. 

2.  All  causes,  which  shall  be  docketed  before  the  eighth  day 
of  a  term,  shall  stand  for  trial  during-  that  term.  All  appeals, 
which  shall  be  docketed  afterwards,  shall  be  tried  or  continued 
[i  1 1n'  option  of  the  appellee.     All  suits  in  equity,  transferred  to 

this  court  for  hearing,  and  not  docketed  before  the  eighth  day 
of  a  term,  shall  be  continued  at  the  option  of  either  party. 

3.  During  the  two  first  days  of  the  term,  the  court  will  hear 
motions,  ami  try  causes  by  the  consent  of  the  counsel  on  both 
sides.  On  the  third  day  of  the  term,  the  court  will  proceed  reg- 
ularly with  the  dockets:  first,  with  that  of  the  state:  secondly, 
the  equity;  and,  thirdly,  the  law  causes. 

4.  For  the  court  held  at  Raleigh,  the  clerk  will  ducket  the 
causes  in  the  following  order,  namely:  Those  from  the  fifth  cir- 
cuit shall  be  placed  first;  then  those  from  the  fourth  circuit,  and 
so  on  to  the  first  circuit. 

5.  For  the  court  held  at  Morganton,  the  cleric  will  docket  the 
causes  in  the  following  order,  namely:  Those  from  the  seventh 
circuit  shall  be  placed  first;  and  then  those  from  the  sixth  cir- 
cuit; and  then  those  from  other  counties. 

ft.  When  causes  are  called,  they  must  be  tried  or  continued. 
unless,  for  special  cause,  the  court  should  extend  the  time  for  the 
argument,  and  except  that  equity  causes  under  a  reference  may 
be  kept  open  a  reasonable  time  for  the  coming  in  of  the  reports. 
and  filing  and  arguing  exceptions.     8  Jred.,  211. 

General  Order  of  December  Term,  1849. 

The  judges  of  the  supreme  court  will  hereafter  require  that 
applicants  for  license  shall  have  gone  through  the  following 
courses  of  reading: 

For  the.  County  Courts. 

Blackstone's  Commentaries,  4  vols..  2d  volume  'particularly; 
Coke  on  Littleton,  or  Cruise's  Digest ;  Fcarne  on  Remainders  and 
Executory  Devises;  Sanders  on  Uses  and  Trusts;  Roper  on 
Legacies,  or  Toller  or  Iredell  on  Executors;  Revised  Statutes, 
chapter  37,  Deed  and  Conveyances.;  38,  Descents;  121,  Widows; 
122,  Wills  and  Testaments. 


GENERAL  RULES.— GIFTS— I.  649 

For  the  Superior  Courts. 

Third  book  of  Blackstone ;  First  volume  of  Chitty's  Pleadings: 
Stephen  on  Pleading;  Fonblanque's,  or  Adams'  Equity;  Newland 
or  Powell  "ii  Contracts;  Mitford's  or  Cooper's  Equity  Pleading; 
Fourth  book  of  Blackstone;  First  volume  of  Phillips  or  Starlrie  on 
Evidence;  Revised  Statutes,  <  .Courts  County  and  Su- 

:    34,  <  !rim€  3  and  Pun  1     ;    63,  Lands   of  d 

Di  btors;  Selwyn's  Nisi  Prius.  10  [red.,  607. 

General  Rule  at  December  T<  rm,  1853. 

It  is  ordered  that  the  causes  be  called  on  the  third  day  of  thi 
term,  beginning  with  the  first  circuit   (Equity  and  Law,)  then 
the  second  circuit,  and  so  on;  and  the  clerk  will  docket  the 
-  according  to  this  arrangement. 


GIFTS. 

I.  Gifts  ol   6laves  prior  to,  or  indepen-  1  III.  Gifts  of  chattel  property  other  than 

lent'  ai         I  306 

II.  Gifts  of  slaves  since  the  act  of  1806.    j 

Note. — Slavery  is  now  abolished  in  North  Carolina.     See  the  note  to  the  title  oi 

i.     gifts  of  slaves  prior  to,  oil  independent  of,   the  ac  i   0]     i 
(rev.  code,  ch.  37,  sec.  17.) 

1.  In  a  gift  of  a  slave  before  the  act  of  1806,  a  symbolical  d<  - 
livery  was  sufficient.  Arringkm  v.  Arrington,  1  Hay.,  i.  (<  Over- 
ruled.    See  Adams  v.  Hayes,  2  [red.,  361.) 

2.  [fa  lather,  on  the  marriage  of  his  daughter,  put  anegro.or 
r-ther  p  1  cb  tttel,  into  the  possession  of  his  son-in-law,  bet 
lore  the  act  of  1806,  it  was  in  Law  a  gift,  unless  the  contrary 
could  be  shown.  Farrel  v.  Perry,  1  Hay,  2.  S.  P.,  Garter  v. 
Rutland,  Ibid,  97,  (112.)  Purler  v.  Phillips,  Ibid,  451,  (519.) 
Kfflingsioorth  v.  Zdlicoffer,  2  Hay.,  72,  (240.)  S.  (.'..  Tay.  143, 
f.ss.)  '  Mitchell  v.  Cheeves,  2  Hay.'.  126,  (287.) 

3.  Under  the  act  of  1784,  as  against  purchasers,  a  gift  of  a 
slave  to  a  child  must  be  bv  a  deed  registered.     Lotha,,*  v 

2  Hay..  66,  (233.) 

4.  When  there  is  no  ere  liter  or  purchaser,  it  is  not  nee  sssary. 
Anonymous,  2  Hay.,  86,  (25G.)  S.  P.,  Hancock  v.  Hwey,  Tay., 
104.  (60.) 


650  GIFTS— I. 

5.  A  gift  of  slaves  for  life,  with  a  limitation  over,  is,  as  in  the 
case  of  other  personal  property,  a  gift  of  the  absolute  property  to 
the  donee  for  life.  Cutlar  v.  Spiller,  2  Hay.,  130,  (2(J5.)  S.  P., 
Gilbert  v.  Murdoch,  Hid,  182,  (380.)  (See  Eev.  Code,  ch.  37, 
sec.  21.) 

6.  Under  the  act  of  1784,  all  gifts  of  slaves  not  in  writing,  or 
not  attested  by  a  subscribing  witnesses,  were  void  against  creditors 
and  purchasers,  whether  i  Ik  y  had  notice  <  if  the  gift  or  not.  Pearson 
v.  Fisher,  1  Car.  L.  R,  460,' (72.)  S.  P.,  Sherman  v.  Russell,  1 
Car.  ..11.467,(79.)  McCree-v.  Houston,  3  Murph.,  429.  Wat- 
ford v.  Pitt,  3  Murph.,  468.     Harris  v.  Yarborough,  4  Dev.,  166. 

7.  A  gift  of  a  slave  to  his  daughter  by  a  father,  reserving  a 
life  estate,  held  good.  Duncan  v.  Self,  1  Murph.,  466.     (See  Rev. 

ch.  37,  sec.  21.) 

8.  Where  a  mother,  prior  to  the  act  of  1806,  made  a  parol  gift 
of  slaves  to  her  children,  but  reserving  to  herself  a  life  .state, 
and  afterwards  married,  it  was  held  that  the  reservation  of  a  life 
estate  in  such  a  gift  was  void,  that  her  possession,  being  with  the 
consent  of  the  children,  was  not  adverse  to  their  claim,  and  that 
they  had  a  right  to  recover  the  slave  from  her  second  husband, 
at  any  time  within  three  years  after  her  death.  Vass  v.  Hicks, 
3  Murph.,  493. 

9.  The  seventh  section  of  the  act  of  1784,  requiring  sales  and 
gifts  of  slaves  to  be  in  writing,  attested  by  a  witness  anil  regis- 
tered, was  passed  for  the  protection  of  creditors  and  purchasers 
only ;  and  under  it  a  gift  or  sale  is  good  between  the  parties 
without  a  deed  properly  attested,  and,  if  by  deed  thus  attested, 
without  its  being  registered.     Palmer  v.  Faucit,  2  Dev.,  240. 

10.  A,  living  in  North  Carolina,  having  sent  certain  slaves  to 
his  son-in-law  B,  who  lived  in  South  Carolida,  afterwards  went 
to  tin/  plantation  of  B  in  that  state,  where  the  slaves  were  then 
in  his  possession,  and  told  B,  in  the  presence  of  other  persons, 
"  that  he  (A)  had  no  claim  to  the  negroes,  or  the  other  property 
that  hail  been  sent  to  B's  wife,"  and  said  further  "  that  the  ne- 
groes were  the  property  of  B,  that  B  might  dispose  of  them  as 
he  saw  proper,  and  that  he  (A)  had  no  claim  to  them."  It  was 
hehl  that,  as  the  law  of  South  Carolina  was  admitted  to  be  the 
same  as  the  common  law  respecting  parol  gifts  of  other  personal 
chattels,  this  was  not  a  gift  of  the  negroes  to  B;  that,  to  consti- 
tute a  valid  parol  gift  of  personal  chattels,  actual  delivery  is  ne- 
cessary, that  is,  some  act  is  required  by  which  the  possession  of 
the  thing  delivered  shall  be  transferred  from  the  donor  to  the 
donee;  and  that  the  circumstance  that  the  negroes  were  in  the 
actual  possession  of  the  donee,  at  the  time  the  parol  declaration 
of  gift  was  made,  formed  no  exception  to  the  general  rule.  Ad- 
ams v.  Hayes,  2  Ired.,  361. 

11.  Where  slaves  had  been  bailed  by  a  father-in  law,  living  in 
Virginia,  to  his  son-in-law  living  in  this  state,  mere  words  of  gift 


GIFTS— I.-II.  651 

afterwards  used,  in  the  absence  of  the  slaves,  were  held  not  to  be 
sufficient  to  pass  the  property;  as  actual  delivery  is  essential  to 
the  validity  of  a  gift.     Davix  v.  Boyd,  6  Jones,  249. 
See  (Slaves — Sales  and  gifts  of  slaves,  20-26.) 

II.       GIFTS  OF  SLAVES  SINCE    THE    ACT   OF    1806. 

1.  A  written  transfer  is  necessary,  under  the  act  of  1806,  in  all 
eases  where  one  person  gives  slaves  to  another.  Cotton  v.  Pow- 
ell, 2  Car.  L.  R.,  431,  (313.)     (See  Eev.  Code,  ch.  37,  sec.  17.) 

2.  The  third  section  of  the  act  of  1806,  relating  to  gifts  of 
slaves  theretofore  made,  referred  only  to  adverse  claims.  Drew 
v.  Drew,  2  Car.  L.  R.,  437,  (321.) 

3.  Under  the  second  proviso  of  the  third  section  of  the 
1806,  a  slave,  who.  under  a  parol  gift,  remains  hi  the  possi 

of  a  child  until  the  death  of  the  parent  intestate,  is  excepted. 
In  such  case  the  slave  is  to  he  considered  an  advancement  to 
the  child.  Such  advancement  is  a  gift,  or  not,  at  the  option  of 
the  child.  If,  after  the  death  of  the  parent,  he  elect  to  bring  it 
into  hotchpot,  he  may  do  so  and  come  in  for  a  distributive  share, 
but  if  he  be  satisfied  with  what  he  has  received,  he  may  consider 
it  as  ;■  gift  protected  by  the  proviso;  and  this  proviso  is  not  con- 
fined to  gifts  theretofore  made,  but  extends  also  to  gifts  there- 
after to  be  made.  Davis  v.  Brooks,  3  Murph.,  133.  S.  P.,  Thomp- 
son, v.  Todd,  2  Dev.  and  Bat.,  63. 

4.  Where  a  father  prior  to  1806  put  into  the  possession  of  his 
daughter,  upon  her  marriage,  a  slave,  and  afterwards  sold  the 
slave  and  purchased  a  tract  of  land  for  his  son-in-law  and  daugh- 
ter to  live  on,  and  then,  after  the  year  1806,  let  her  have  another 

.itter  which  her  husband  died,  and  she  married  a  second 
husband,  who  sold  the  slave,  it  was  held  that  the  father  could 
recover  the  slave  from  the  purchaser,  because  his  daughter  had 
no  title  as  donee,  for  want  of  a  written  deed  of  gift,  nor  could 
she  claim  as  purchaser,  in  consecpience  of  the  sale  by  her  lather 
of  the  slave,  because  he  belonged  to  her  first  husband  jure 
marita.     Barroiu  v.  Pender,  3  Murph.,  483. 

5.  The  words  of  the  3rd  section  of  the  act  of  1806,  relative 
to  the  gifts  of  slaves,  "  every  person  claiming  title  to  any  slave, 
by  virtue  of  any  parol  gift  heretofore  made,  shall  commence  and 
prosecute  his  suit  for  the  same,  within  three  years  from  the  pas- 
sing of  the  act,  otherwise  the  same  shall  be  forever  barred," 
mean  that  the  rented)/  shall  lie  barred  and  not  the  right.  Skiii- 
ner  v.  Skinner,  3  Murph.,  535.  S.  P.,  Lynch  v.  Ashe,  1  Hawks, 
338. 

6.  A  deed  of  gift  for  slaves,  not  attested  by  a  subscribing 
witness,  is  void.     Atkinson  v.  Clarke,  3  Dev.,  171. 

7.  A  gift  of  slaves  made  by  an  instrument  not  under  seal,  and 


652  GIFTS— I.-II. 

unaccompanied  by  delivery,  is   void.     Morrow   v.    Williams,  3 
Dev.,  263. 

8.  The  gift  of  a  slave  by  parol,  since  the  act  of  1806,  operates 
as  a  bailment;  and  no  length  of  possession  under  such  gift  will 
raise  a  presumption  of  title  in  the  donee.  Hill  v.  Hughes,  1 
Dev.  and  Bat.,  336. 

9.  If  the  donee  of  a  slave,  under  a  parol  gift,  convey  him  in 
trust  to  secure  creditors,  but,  by  a  stipulation  in  the  deed,  still 
retains  possession,  such  possession  is  not  the  possession  of  the 
alienee,  so  as  to  operate  as  a  liar  to  the  donor  under  the  statute 
of  limitations.     Ibid. 

10.  Where  one  made  a  parol  gift  of  slaves  to  his  son-in-law, 
and  the  latter  by  direction  of  the  former,  gave  them  by  his  will. 
to  the  grandchildren  of  the  donor,  d  that  this  did  not 
constitute  a  gift  in  writing,  within  the  act  of  J806,  and  that  the 
donor  might,  after  the  death  of  his  son-in-law,  resume  the  pos- 
session of  theni.     Bennett  v.  Flowers,  1  Dev.  and  Tat..  467. 

11.  Where  one,  upon  the  marriage  of  his  daughter,  made  a 
parol  gift  of  slaves  to  her  husband,  who  died  leaving  two  in- 
fant daughters,  and  appointed  the  donor  executor  of  his  will  and 
guardian  of  his  children,  to  whom  he  bequeathed  the  slaves: 
it  was  held  that  the  donor  might,  under  the  act  of  1806,  resume 
the  poi  session  of  them,  although  he  had  proved  the  will,  hired 
them  out  as  guardian  during  the  minority  of  the  legatees,  ami 
upon  their  marriage  had  procured  a  division  to  be  ma.de,  and 
delivered  the   share  of  each  in  severalty.     Hamlin  v.  A 

Dev.  and  Bat.,  479,  S.  I'..  Alston  v.  Hamlin,  2  Dev.  and  Bat,  115. 

12.  The  act  of  1806,  having  been  enacted  on  purpose  to  ex- 
clude all  parol  evidence  of  a  gift  of  slaves,  necessarily  avoids 
every  parol  estoppel,  that  might  be  set  up  to  defeat  its  operation. 
Alston  v.  Hamlin,  2  Dev.  and  Bat,  115,  S.  P.,  Knit/lit  v.  11'all,  2 
Dev.  and  Bat.,  125. 

13.  Where  a.  father,  since  the  act  of  1806,  places  slaves  in  the 
possession  of  a  child  and  dies  intestate,  a  gift  of  the  slaves,  and 
not  a  mere  loan  ot  them,  must  have  been  intended  at  the  time, 
in  order  to  make  it  an  advancement   Cowan  v.  Tucker,  5  Ired.,  78. 

14.  Where  a  father  had  made  a  parol  gift  of  slaves  to  a  daugh- 
ter, and  afterwards  died,  leaving  a  last  will  and  testament,  by 
which  he  only  devised  lands  and  appointed  executors,  lint  made 
no  disposition  of  his  personal  property,  it  was  held  that  this  was 
not  such  an  intestacy,  as  was  meant  by  the  proviso  to  the  act  of 
1806,  and  that  the  daughter,  therefore,  acquired  no  title  to  the 
said  slaves  as  an  advancement  in  the  case  of  an  intestacy,  and 
the  executors  were  entitled  to  recover  them  from  her  or  her  as- 
signees. Person  v.  Twitty,  6  Ired.,  115.  (See  Rev.  Code,  ch. 
50,  sec.  12.) 

15.  A,  in  1825,  made  a  parol  gift  of  a  slave  to  her  grandson  B, 
whose  father  took  him  into  possession  and  kept  him  until  1841, 


GIFTS— II.-III.  653 

when  be  conveyed  him  together  with  other  slaves,  by  a  deed  of 
gift,  to  his  said  son,  and  delivered  him  to  B.  In  1840,  the  grand- 
mother's husband,  (she  having  married  again)  demanded  the 
slave  of  tne  father  who  refused  to  deliver  him.  B  kept  the 
slave  from  1841  to  1846,  treating  him  as  his  own,  but  in  1843 
ted  permission  of  his  grandmother  to  pell  the  slave,  which 
was  refused;  and  it  was  held  that  B's  possession  under  those  eir- 

Ebr  five  years,  even   with  a   constant  claim  of 
could  not  divest  the  right  ol   his  grandmother's  husband.      Gra- 
v.  Davidson,  If  bred.,  245. 

16.  The  donee  of  a  slave  by  parol  is  the  bailee  of  the  donor, 
and  no  length  of  possession,  although  on  a  claim  of  property, 
will  constitute  a  title  in  him,  unless  there  has  been  a  demand 
and  refusal,  or  some  act  done  in  opposition  to  the  will  of  the  do- 
nor, changing  the  nature  of  the  possession.     Baxter  v.   1, 

13  Ired.,  459. 

17.  A  deed  of  gift  for  slaves,  expressed  to  be  for  natural  love 

■    I"-,    irds  a    bastard  child,  is  good  propria   vigore, 
the  slaves  were  not  delivered  at  the  time  of  the  u- 

of  the  deed.     Gordon  v.   Wilson,  4  Jones,  64. 

18.  Where  slaves  were  put  into  the  hands  of  a  son-in-law  by 

isr-iii-law,  under  a  written  agreement  that  they  were  to 
a,   a   subsequent  written   contract  under  seal,  in  which 
her-in-law  agrees  and  binds  himself  to  surrender  all  light 
and  title,  &c,  an  I  binds  himself  to  sign  any  paper  writing 
such  title  as  will  be  vali 
iws  of  North  Carolina,  wa  \  held  no1  to  operate  as  a  con- 
■    of  a  present  interest,  bul  only  as  an  agreement  to  make 
a  title  in  future.     Davisv.  Boyd,  6j  Jones  24!) 

18.   Where  a  testator  gave  to  bis  wife,  whom  he  app 

ixecutrix,  all  his  slaves,  with  power  to  allot  them,  from  time  to 

mong  their  childn  n  an  I  she  afterwards  did  so.  it  mas  held 

ied  not  be  in  writing,  as  the  children 

I  the  slaves  under  the  will,  and  their  mother,  in  making 

nts,  was  only  performing  her  duty  as  executrix.    (Jrlf- 

'  ■.  ■      ,  7  Jones,  520. 

See  (Slaves— fcrifl    of    laves  since  the  act  of  1806,  6-17-20-26.) 

III.   OF  CHATTEL  PROPERTY  OTHER  THAN  SLAVES. 

1.  A  symbolical  delivery  of  chattels  is  good,  when  the  thing 
given  is  not  present  to  be  delivered.  La  ,  Pritchard,  2 
Hay.,  293,  |  U8,)  and  337.  (513.) 

2.  When  a  gift  of  a  chattel  is  found  or  stated  in  a  ease,  a  de- 
livery is  presumed,  because  without  it  there  is  no  gift.  And 
such  possession  of  the  donee  will  be  presumed  to  continue,  unless 
tin/  contrary  be  found  or  stated;  especially  if  it  appear  that  an- 


654  GIFTS— GEANT— I. 

other  claimed  and  exercised  ownership  from  a  particular  subse- 
quent period.     Spiers  v.  Alexander,  1  Hawks,  67. 

3.  In  a  parol  gift,  the  free  assent  of  the  party  is  required,  and 
deliberation  and  sedateness  on  the  part  of  the  donor'.'  are  only 
evidence  of  that  assent.     Morisey  v.  Bunting,  1  Dev.,  3. 

4.  Delivery  is  essential  to  a  gift.  Hence,  where  an  obligee 
gave  his  obligor  an  order  on  his  agent  for  the  delivery  of  the 
bond  then  in  his  possession,  which  order  was  disobeyed,  it  was 
held  that  the  gift  was  incomplete  and  might  be  revoked,  and 
that  resuming  the  possession  of  the  bond  and  bringing  suit  upon 
it  was  a  revocation.     Picot  v.  Semderson,  1  Dev.,  309. 

5.  Where  a  father  places  personal  property,  other  than  slaves, 
in  the  possession  of  his  son,  about  the  time  he  arrives  at  age,  and 
suffers  him  to  continue  such  possession,  uncontrolled,  for  a  con- 
siderable time,  using  it  as  his  own,  the  law  implies  a  gift,  which 
can  only  be  rebutted  by  express  evidence  of  a  mere  loan.  Hollo- 
well  v.  Skinner,  4  Ired.,  165. 

6.  Where  a  father  puts  his  son  in  possession  of  a  plantation 
and  slaves,  and  permits  him  for  three  years  to  appropriate  the 
crops  to  his  own  use,  the  crop  of  the  fourth  year,  as  well  as  the 
preceding  ones,  is  to  be  considered  as  a  gift  from  the  father  to 
the  son,  and  liable  to  the  claim  of  the  son's  creditors.  Skinner 
v.  Skinner,  4  Ired,  175. 


GRANT. 


I.  What  may  or  may  not  be  granted, 
and  of  the  effect  of  a  grant. 
II    Of  the  effect  of  an   exception  in  a 
grant. 


III.  Of  the  presumption  of  a  grant. 

IV.  How    and   when    grants    may    be 

avoided. 


I.   WHAT  MAY  OR  MAY  NOT  BE  GRANTED,  AND  OF  THE  EFFECT  OF  A  GRANT. 

1.  Where  two  grants  bear  date  on  the  same  day,  that  which 
has  the  earliest  or  smallest  number  shall  be  entitled  to  the  prior- 
ity. Andrews  v.  Mulford,  1  Hay,  311,  (358.)  S.  P.,  Foreman  v 
Tyson,  Ibid,  396,  (571.) 

2.  When  two  grants  bear  date  on  the  same  day,  the  number 
of  the  grant  wiUbe  looked  to  only  where  there  is  no  other  circum- 
stance; but  as  the  number  is  no  part  of  the  grant,  if  the  grant 
having  the  lower  number?  call  for  the  lands  having  the  higher 
number,  the  latter  shall  be  deemed  the  prior  grant.  BedtMckv 
Leggett,  3  Murph.,  539. 

3.  Under  the  act  of  1794,  a  grant  from  the  state,  conveying 


GRANT— I.  655 

more  than  six  hundred  and  forty  acres  of  land,  is  good.  Men- 
denhallv.  Cassels,  3  Dev.  and  Bat.,  49.  (See  Rev.  Code  of  1820, 
ch.  422.) 

4.  If  a  grant  cover,  in  part,  land  not  liable  to  entry,  or  which 
has  been  previously  granted,  it  will  be  good  for  the  land  com- 
prehended in  it,  which  had  not  been  granted,  and  was  liable  to 
entry.     Hough  v.  Dumas,  4  Dev.  and  Bat.,  328. 

5.  At  common  law,  land  covered  by  water  was  the  subject  ot 
a  grant,  except  where  the  tide  ebbed  and  flowed,  and  so  it  was 
in  this  state  in  the  year  1839,  the  former  legislative  restrictions 
having  been  repealed  by  the  Revised  Statutes  of  183(3,  and  not 
re-enacted  until  after  the  grant  in  this  case  was  taken  out.  Hat- 
field v.  Grimstead,  7  Ired.,  139.  (See  for  the  present  law  on  the 
subject,  Rev.  Code.  ch.  42,  sec.  1.) 

6.  Where  surveys  are  made  on  any  navigable  water,  the  wa- 
ter shall  form  one  side  of  the  survey.  And  any  island  or  islands 
in  any  navigable  water  may  be  entered,  surveyed  and  granted., 
and  where  the  water  is  not  navigable,  the  land  may  be  granted, 
though  it  is  covered  by  the  water,  as  for  instance,  the  bed  of  an 
unnavigable  river  may  be  the  subject  of  entry  and  grant.  Smith 
v.  Ingram,  7  Ired.,  175. 

7.  Land  lying  between  the  high  and  low  water  marks  of  the 
tides  of  the  ocean,  or  of  a  navigable  stream,  is  not  subject  to  entry 
and  grant  under  the  laws  of  this  state.  Wardx.  Willis,  6  Jones, 
183. 

8.  All  the  unappropriated  swamp  lands  in  this  state  were,  by 
the  acts  of  1825  and  1836,  vested  in  the  president  and  di 

of  the  literary  fund,  and  the  provision  of  entering  and  takin  ,<;.  os- 
session  if,  spoken  of  by  the  act  of  1850,  applies  only  to  such  lands 
as  may  have  been  forfeited  for  non-registration  of  grants  by 
which  they  were  held  under  the  act  of  1836,  or  for  the  non-pay- 
ment of  taxes  under  the  act  of  1*42 ;  so  that  a  grant  by  the  state 
of  unappropriated  swamp  lands,  not  coming  within  the  provis- 
ions of  the  two  latter  acts,  is  void.      Wldte  v.  I';  rry,  6  Jones,  198. 

9.  The  act  of  L8  '">  for  running  theb  line  between  this 
stat'-  and  South  Carolina  was  int<  tided  to  confirm,  and  did  con- 
firm, the  first  "rants  by  either  state  within  the  disputed  territo- 
ry, a  id  all  territory  must  be  considered  as  having  been  disputed, 
for  which  the  respective  states  had  opened  land  offices  and  is- 

ants.     Freeman  v.  Lqftis,  (>  Jones,  524. 

10.  AH  the  bays  and  inlets  on  our  coast,  where  the  tide  from 
the  sea  ebbs  and  .lows,  and  all  other  water  courses,  whether 
sounds,  rivers  or  creeks,  which  can  be  navigated  by  sea  vessels, 
an-  called  navigable,  and  are  altogether  publici  juris,  and  the  soil 
un  ler  them  cannot  lie  entered,  and  a  grant  taken  for  them  un- 
der the  entry  law.     State  v.  Glenn,  7  -Jones,  321. 

11.  Where  the  tide  ebbs  and  flows,  the  shore,  between  the  high 
and  low  water  mark,  cannot  be  entered  and  granted  under  the 


(350  GRANT— I..-H-III. 

general  law,  but  may  be  the  subject  of  special  legislative  grant 
Ibid. 

12.  All  rivers,  creeks  and  other  water  courses,  which  are  not 
navigable  tor  sea  vessels,  though  they  may  be  wide  and  deep 
enough  to  be  navigable  by  boats,  flats  and  rafts,  may  have  the 
soil  under  them  entered  and  granted  under  the  entry  law.  Ihid. 
S.  1'.,  Cornelius  v.  Glenn,  7  Jones,  512. 

See  (Covenant  41.)     (Registration  5-10-22.) 

II.   OF  THE  EFFECT  OP  AX  EXCEPTION  IN  A  GKANT. 

1.   Where  there  is  an   exception   in   a  grant,  the  onus  of  proof 
lies  upon  the  party  who  would  take  advantage  of  that  exception. 
nick  v.  Monroe,  1  Jones,  13. 

III.       OF    TI1F,    PRESUMPTION    OF    A    GKANT. 

1.  When  land  is  designated  by  known  and  visible  boundaries 
and  lias  been  possessed  for  sixty  years,  it  affords  at  the  common 
law  tlio  presumption  of  a,  grant.    Dudley  v.  Strange,  2  Hay.,  12. 

2.  lli^'  jury  may  presume  a  grant  from  length  oi  possession. 
SvRivant  v.  Alston,  2  Hay.,  128,  (290.)     S.  P.,  Hanks  v.  1 

I  1:7,  (321.)  _ 
:.!.  Circumstantial  proof,  even  the  admission  of  the  opposite 
party  is  not  sufficient,  without  possession,  to  raise  the  presump- 
tion of  a  grant.  Clark  v.  Arnold,  2  Hay.,  287,  (467.)  S.  P., 
Cutter  v.  Blackman,  2  Car.  Law  Eepos.  566,(368.)  Dancy  v. 
Sugg,  -  Dev.  and  Bat.,  515. 

4.  A  grant  may  lie  presumed  from  great  length  of  possession, 
although  no  privity  can  be  traced  between  the  successive  ten- 
ants. And  in  such  a  ease,  a  color  of  title  for  the  land,  as  to 
part  of  the  time,  may  be  offered  to  tin'  jury  as  a  circumstance 
in  aid  of  the  presumption.  Fitzrandol ph  v.  Norman,  X.  C.  Term 
R.  121,  (564) 

5.  The  act  of  1791,  making  certain  possessions  valid  against 
the  sfaii',  does  not  affect  the  common  law  principle  of  presuming 
a  grant.     Ibid.    (See  Rev.  Code,  ch.  65,  sec  2.) 

6.  Twenty  years  enjoyment  of  a  franchise  raises  the  presump- 
tion of  a  grant  of  it.     Pipkin  v.  Wynns,  2  Dev.  402. 

7.  Where  lands  have  been  overflowed  by  a  mill  pond  for  forty 
years,  without  any  claim  for  damages  by  the  owner,  the  jury 
may,  from  the  acquiescence,  presume  a.  grant  of  the  easement; 
ami  ought  to  do  so,  unless  the  presumption  is  rebutted  by  con- 
trary evidence.      Wilson  v.  Wilson,  4  Dev.,  154. 

8.  From  long  and  uninterrupted  possession  of  land  a  grant 
may  be  presumed.  This  presumption  is  not  merely  one  of  fact, 
which  a  jury  may  make;  but  it  is  a  presumption  which  the  law 


GEAXT".—  III.  657 

requires,  and  the -court  should  direct  the  jury  to  make,  unless 
proof  is  offered  which  shows  the  fact  to  be  otherwise.  Rojers. 
v.  Mate,  4  Dev.,  180. 

9.  To  raise  this  presumption  between  individuals,  twenty 
years  is  sufficient;  and  in  cases  not  within  the  act  of  1826,  less 
than  twenty  years  is  not.  As  against  the  State  the  precise  pe- 
riod is  in  >t  settled;  but  forty  years  is  certainly  sufficient.  This 
presumption  extends  not  only  to  grants  and  deeds,  but  to  every 
thing  necessary  to  support  the.  title  of  the  possessor.     Ibid. 

Id.  When,  however,  it  appears  that  one  entered  originally  not 
as  owner,  but  under  the  title  of  another,  even  a  very  long  pos- 
session will  not  raise  this  species  of  presumption- j'-there  an  actual 
conveyance  must  be  shown  or  presumed  by  the  jury,  and  there 
ought  to  be  evidence  that,  at  some  time,  the  possession  became 
adverse,  and  was  thereafter  so  long  continued, -as  to  induce  the 
actual  belief  that  there  was  a  subsequent  deed.     Ibid. 

11.  The  ground,  on  which  is  presumed  a  grant  of  the  privilege 
of  ponding  water  on  another's  land  for  the  purpose  of  a  mill,  is 
that  it  has  bet  a  enjoved  by  the  person  claiming,  and  those  with 
whom  he  connects  himself,  for  twenty  years  or  more,  in  the  state 
or  to  the  extent  to  which  he  claims.  Gerenger  v.  Summers,  2 
Ired,,  229.- 

1:.'.  It  is  mi  answer  to  this  presumption,  that  the  height  of'the 
water  has  been  sometimes  lowered  by  a  draught,  or  that  the 
water  has  been  occasionally  let  oil'  for  the  purpose  of  repairing 
the  mill,  and  only  fur  the  period  required  for  such  purpose.   Ibid. 

13.  A  person  who  has  acquired,  by  presumption  of  law,  the 
grant  of  a  right  to  pond  water  on  another's  land  to  a  certain 
height,  is  not  thereby  entitled  to  increase  tin/  height  of  such 
pond,  but,  if  he  do,  he  is  liable  in  damages  for  the  excess ;  and  it  is 
incumbent  on  him.  who  claims  the  privilege  to  pond  water,  to 
show  that  that  privilege  authorized  him  to  pond  the  water  as 
high  as  he  now  ponds  it.     Morris  v.   Commander,  3  Ired.,  510. 

14.  For  the  purpose  of  presuming  a  grant  of  an  exclusive 
right  of  fishing  in  any  person,  it  should  appear  that  all  others 
have  been  kept  out  by  him  and  his  grantors,  not  only  from  fish- 
ing with  a  seine,  but  from  fishing  in  any  manner,  in  the  waters 
to  which  he  lays  claim.     Collins  v.  Benbury,  5  Ired.,  118. 

15.  Where  A,  B,  ('  and  D  had  had  possession  of  a  tract  of 
land  for  upwards  of  forty  years,  under  successive  conveyances 
from  A  tn  1'..  from  1)  to  C,  and  from  C  to  D,  with  the  exception 
of  five  years,  between  the  twentieth  and  twenty-fifth  year, 
during  which  period  no  possession  was  proved,  it  xcas  held  that. 
notwithstanding  the  five  years  interval,  a  presumption  of  a  grant 
from  the  State  arose;  for  that  a  continuous,  unceasing  posses- 
sion was  not  necessary  to  raise  such  a  presumption.  Reed  v. 
Earnhart,  10  Ired.,  516. 

16.  The  presumption  of  a  grant  from  long  possession  is  not 

42 


658  GRANT.— HI. 

based  upon  the  idea  that  one  actually  issued:  but  because  pub- 
lic policy  and  "  the  quieting  of  titles  make  it  necessary  to  act 
upon  that  presumption.''  The  presumption  can  only  be  repelled 
1  iv  proof  of  the  fact  that  the  State  never  did  part  with  its  title. 
Ibid. 

17.  In  order  to  raise  the  presumption  of  the  grant  of  an  ease- 
ment, two  things  are  necessary;  there  must  be  a  thing  capable 
of  being  granted,  and  there  must  be  an  adverse  possession  or  as- 
sertion of  right,  so  as  to  expose  the  party  to  an  action  unless  he 
had  a  grant.     FeUon  v.  Simpson,  11  Ired.,  84. 

18.  No  mere  possession  ol  land  for  a  period  less  than  thirty 
years  will  authorize  the  presumption  of  a  grant.  Mason  v,  Mt- 
Liiiii.  13  Ired.,  262. 

19.  If  one  be  in  possession  of  land  under  known  and  visible 
boundaries,  and,  at  any  time  before  the  presumption  of  a  grant 
has  arisen  under  the  statute,  another  person  procure  a  patent  for 
such  lands,  or  a  part  thereof,  the  patent  interrupt  the  presump- 
tion, and  the  subsequent  possession,  though  with  the  former,  ol 
the  length  of  time  required  by  the  statute  will  not  raise  the  pre- 
sumption of  a  grant  for  the  land  covered  by  the  patent.  Brown 
v.  hotter,  Busb.,  461. 

'20.  The  possession  of  a  field  for  more  than  thirty  years  will 
raise  the  presumption  of  a  grant,  for  that  much,  at  least,  of  the 
tract  on  which  it  i  ttt,  1  -'ones.  317. 

21.  The  question  of  color  of  title,  and  known  and  visible  boun- 
daries,arisi  ctofl791,an  ,  uol  lifect  the  presump- 
tion of  a  grant  from  length  of  time  at  the  common  law.  Ibid. 
(See  Rev.  (.'oil',  eh.  65,  see.  :>. ) 

22.  From  thirty  years'  poi  tnd,  according  to  known 
meets  and  boundaries,  the  law  presumes  not  onh  a;  rant,  bul 
every  thing  else  that  is  necessary  to  complete  tit  title.  Baker 
v.  McDonald,  2  Jones,  244. 

23.  Wl  ere  A  owned  a  tract  of  land  in  the  form  of  a  parallelo- 
gram, of  which  he  had  the  actual  possession  of-the  southern  end 
only,  and  severed  the  two  ends  by  sellin  :  from  the  mid- 
dle, and  at  the  end  of  twenty-two  years  lie  conveyed  the  south- 
ern end  to  B,  who  continued  the  possession  until  his  and  A'spos- 
session  were  for  more  than  thirty  years,  and  he  then  conveyedthe 
northern  end  to  B  by  a  separ  te  deed,  having  no  actual  occupa- 
tion of  that  end,  it  ipasheld  that  there  was  no  such  possession 
of  the  northern  end  for  more  than  thirty  years,  as  to  authorize 
the  presumption  of  a  grant  from  the  State  for  this  northern  end. 
Newsom  v.  Kinnamon,  1  Winst,  99. 

See  (Evidence — Presumption,  7-8-13-14-15-22-24-25 
-33^35-36-39.)     (Possessi  a,  8    | 


GRANT.— IV.  659 

IV.       HOW  AND  WHEN  GRANTS  MAY  BE  AVOIDED. 

1.  Whether  a  grant  from  the  State,  signed  by  the  governor, 
and  countersigned  by  the  secretary,  and  registered  in  the  regis- 
ter's office,  but  having  no  seal  appendant,  can  be  read  in  evi> 
dence,  quaere,     bteek  v.  Anthony,  1  Hay.,  98,  (114.) 

2.  The  act  of  1777  (eh.  114  of  the  R.  C.  of  1820,)  Rev.  Code, 
eh.  42,  making  void  titles,  &c.  means  void  as  to  the  State,  which 
proceeds  to  avoid  them  by  asci./a.  As  between  individuals, 
whoever  obtains  the  first  grant  shall  be  the  owner,  without  re- 
gard tn  the  entry  or  survey,  and  the  grant,  though  voidable, 
cannot  be  avoided  in  an  action  of  ejectment.  Reynolds  v.  Flinn, 
1  Hay.,  106,  (123.)  S.  P.,  Sears  v.  Parker,  Ibid,  126,  (145.) 
Wrigldv.    Bogan,  Ibid,  176,  (20.").)     Dickey  v.  HoodenpUe,  Ibid, 

man  v.    Tyson,  Ibid,  496,  (571.)     WiUiams'v. 

Wells.  1  Car.  Law.  Rep,  383,    383,   (52.)     Tyrrell  v.  M ey,    I 

Murph,  401.     Tate  v.  Greenlee,  2  Hawks,  231. 

3.  Where  in  a  caveat  the  jury  'found  for  the  defendant,  but,  be- 

was  confirmed  by  the  county  court,  (he  plaintiff 

ant^  on  appeal,  it  was  held  by  the  superior  court 

ant  was  valid,  but  that  the  plaintiff  should  pay  the 
d  ifendant  appearing  to  have  justice  on  his  side.     Cup* 
,  1  Hay.,  456,  (525.) 

4.  Grants  of  escheated  or  confiscated  land,  by  offi  ers  appoint- 
ed to  issue  grants  of  vacant  land,  are  void.  And  though  the 
court  will  net,  on  the  trial  of  an  ejeetin   nt,  cancel  the   grant,  it 

it  to  he  void.     University  v.  Sawyer,  Tay.,  114.  (67.) 
Hay.,  98,  (2.18.) 

5.  A  court  of  law  will  receive  parol  evidence  to  show  that  the 
officers  of  the  State  have  issued  a  granl  for  lands  forbidden  by 

ed,  and  will  take  notice-  that  such 

is  void.     But  where  a  grant  has  merely  issued  irregularly, 

oid  it   must  resort  to  a  court  of  equity. 

;.  1  Murph.,  162. 

(i.  Evidence  to  p  rson,. under  whom  the  defen- 

i  -,i-  the  ti  ;ie  he  made  liis  entry,  and 

hi   did  not  make  his  entry  in  the  manner  presciibed  by  the 

777,  (which  declares  the   entry  void,  unless  made  as  the 

ible  iii  an  action  of  ejectment     Tend! 

v.  Moor,  ■•,  1  Murph.,  491. 

'.    a.,  under  the  ad  of  1798,  to  vacate 

lurchaser  from    bhe  original  grantee,  (the 

i   protected;  the  acl   subjects  to  its  ope- 

iming  under  the  grant,  and  the  court  can 

!  lake  no    avii      |ior  innocent  purchasers.     TerreUv.  Manney,  2 

,vlurph.,  375.     (See  Rev.  Code,  <  h  42  sec.  29.) 

8.  There  is  no  limitation  prescribed  by  the  act,  a  dfromthe  9th 
lection,  giving  the  court  jurisdiction  of  all  grants  made  since  the 


660  GRANT.— IV. 

4th  of  July,  1776,  it  would  seem  that  the  legislature  intended 
to  exclude  the  operation  of  time.     Ibid. 

9.  An  instrument  purporting  to  be  a  grant,  being  under  the 
great  seal,  signed  by  the  governor,  and  recorded  in  the  Secreta- 
ry's office,  is  nevertheless  void,  if  it  be  not  countersigned  by  the 
secretary.     Hunter  v.  WUUams,l  Hawks,  221. 

10.  It  is  no  objection  t<>  a  grant  that  the  secretary  of  state  has 
not  recorded  it  in  his  office.     Shade  v.  Green,  '1  Hawks,  218. 

11.  Where  the  subject  matter  of  a  grant  is  within  the  province 
of  the  public  officer  who  makes  it,  the  grant  shall  not  be  invali- 
date!! by  any  thine;  dehors  the  grant,  when  it  comes  incidentally 
before  the  court;  but  it  is  otherwise,  when  its  validity  is  directly 
put  in  issue,  as  on  a  sci.  fa.  to  repeal  it.  Tate  v.  G  eenlee,  - 
Hawks,  231. 

12.  The  act  of  1798,  which  authorizes  the  vacating  oi  grants, 
gives  no  authority  to  interfere  with  mesne  a  mveyanoes  from  one 
man  to  another;  a  petition  to  vacate  a  grant  will  not  lie,  there- 
fore, against  a  purchaser  from  the  original  grantee,  wiien  the 
latter  is  not  brought  before  the  court.  Terrell  v.  Logan,  3  Hawks, 
319. 

13.  When  a  defendant  has  been  in  possession  thirteen  years 
under  a  grant,  which  was  obtained  with  a  full  knowledge  by  the 
grantee  of  a  prior  grant,  the  second  grant  will  be  vacated,  not- 
withstanding the  length  of  time;  the  statute  of  limitations  not 
applying  to  such  cases.     McB.ee  v.  Alexander,  3  Hawks,  322. 

14.  The  sovereign  power  cannot  be  estopped.  Where  the 
king,  in  1768,  granted  lands  to  A  which  he  had  previously  grant- 
ed to  Lord  Granville,  the  grant  to  A  was  void;  and  as  the  State 
succeeded  upon  the  revolution  to  Lord  Granville's  right  to  the 
land,  a  grant  made  by  the  State  since,  shall  be  preferred  to  the 
royal  -rant  to  A.     Taylor  v.  Shuford,  4  Hawks,  llii. 

15.  It  being  fraudulent  in  law  for  a  grantee  to  survey  his  own 
entry,  if  that  tact  be  found  by  a  jury,  the  grant  must  be  vacated 
on  a  petition  for  that  purpose,  although  the  jury  may  find  further, 
that  the  survey  was  fairly  made.      Greenlee  v.  Tate,  1  Dev.,  300. 

16.  A  grant  cannot  be  vacated,  without  making  the  grantee, 
or  his  heirs,  a  party,  although  his  interest  in  it  has  been  assign- 
ed    Bradley  v.  Linther,  1  Dev.,  427.    ■ 

17.  Fraud,  which  vacates  a  grant,  being  a  compound  question 
of  law  and  of  fact,  a  general  verdict,  that  a  grant  was  fraudu- 
lently obtained,  is  not  a  sufficient  foundation  for  a  judgment  of 
repeal.     Cruiv  v,  Holland,  1  Dev.,  481. 

18.  A  grantee  cannot,  under  the  act  of  1798,  maintain  a  sci 
fa.  to  repeal  a  grant  for  the  same  land,  when  the  latter  is  older 
than  the  grant  to  him.     Crow  v.  Holland,  4  Dev.,  417. 

19.  A  grant  can  only  be  repealed  at  the  suit  of  the  State  or  of 
ft  prior  grantee.     Ibid. 

20.  A  deed,  for  land  held  adversely  to  the  vendor,  conveys  no 


GRANT.— IV,  661 

title  to  the  vendee,  and  he  cannot  maintain  a  sci.  fa.  to  repeal  a 
grant,  under  which  the  person  in  possession  of  the  land  claims. 
H&yle  v.  Logan,  4  Dew,  495. 

21.  An  actual  adverse  possession  for  seven  years  is  a  bar  to  a 
sci.  fa.  to  vacate  the  grant  under  which  the  defendant  holds. 
Ibid. 

22.  The  act  establishing  a  court  of  patents  did  not  enable  the 
patentee  in  a  junior  patent  to  i-epeal  an  elder  one,  though  his 
entry  was  prior  to  that  of  the  elder  patentee.  FeaOierston  v. 
Mills,  A  Dev.,  596.  S.  P.,  O'KeUyY..  Clayton,  2  Dev.  and  Bat., 
246. 

23.  A  scL  fa.  to  Tepeal  a  grant,  under  the  act  tit  1798,  is  to 
some  purposes  a  proceeding  in  rem,  but  when  issued  at  the  in- 
stance of  a  private  individual  it  is  esse}ifo'a%anaetion  inter  partes, 
and  a  judgment  therein,  vacating  the  grant,  will  bind  those  only 
win  i  are  parties  or  privies.  MHer  v,  Ttoitty,  .">  Dev.  and 
Bat,  14. 

24.  A  proceeding-  in  rem,  which  biads  all  persons,  is  confined 
to  the  proceedings  of  a  court  "exercising  some  peculiar  juris- 
diction, which  enables  it  to  pronounce  on  the  nature  and  qualities 
of  a  particular  subject  matter  of  a  public  nature  and  interest. 
independent  of  any  private  party."      Ibid. 

25.  A  grantee  may,  under  the  act  of  1798,  proceed  to  vacate 
a  subsequent  grant  fraudulently  obtained,  with  knowledge  of 
hie  previous  grant,  theugh  the  subsequent  grant  covers  a  part 
only  ni'  the  land  included  in  his  "'rant.  Hoyt  v.  Mich,  4  Dev. 
and  Bat..  328. 

26.  A  petition  underthe  act  of  1798,  setting  forth,  as  the  mat- 
ters constituting  the  fraud  it  charges,  that  the  defendant,  "  at.  the 
time  of  obtaining  his  grant,  well  knew,  or  had  reason  to  believe, 
or  had  received  seme  information,  that  the  land  had  been  pre- 
viously granted,"  may  he  demurred  to  tin-  uncertainty;  and  if 
the  defendant  do  not  demur,  but  j>lead  to  the  set.  fa.,  it  is  a 
question  whether  any  judgment  could  be  pronounced  for  the 
petitioner  upon  it.     Ibid. 

27.  A  grant,  which  is  sought  to  be  vacated  as  having  been 
illegally  or  fraudulently  obtained,  must  (at  all  events  where  the 
proceeding  is  by  sci.  fa.)  be  vacated  iti  tofo,  -or  not  at  all.     Ibid. 

28.  To  support  an  application  on  the  part  of  a  grantee  to  va- 
cate a  grant  because  of  fraud  in  obtaining  it.  with  knowledge 
of  a  previous  grant  for  the  same  land,  a  case  of  clear  fraud  must 
lie  made  out.  Constructive  notice  of  the  prior  grant,  informa- 
tion that  might  have  put  a  prudent  man  upon  his  guard  before 
he  completed  his  grant,  a  suspicion  that  the  land  or  a  part  of  it 
might  not  be  vacant  and  unappropriated,  or  that  kind  of  notice 
which  may  be  sufficient  in  equity  to  bar  the  plea  of  a  purchaser 
for  valuable  consideration,  is  not  enough  to  constitute  the  fraud 
contemplated  by  the  act.     Ibid. 


662  GRANT.— IV. 

29.  A  set.  fa.  to  repeal  a  grant  should  set  out  particularly  the 
grant  of  the  plaintiff,  or  his  title  derived  from  a  grant,  with  its 
boundaries  and  location,  also  a  copy  of  the  grant,  with  its 
boundaries,  made  to  the  defendant,  or  to  the  person  under  whom 
he  claims,  with  all  their  cornet  names,  and  how  the  two 
grants  conflict;  and  the  sci.  fa.  should  also  aver  the  reasons  why 
the  defendant's  grant  should  be  cancelled.  If  the  defendant 
deny  any  of  the  plaintiff's  allegations,  issues  must  thereupon  be 
made  up  and  found  by  a  jury;  otherwise  the  court  will  not  give 
judgment.     Holland  v.  Crow,  5  [red.,  44S. 

30.  A  grant  cannot  be  avoided  upon  evidence  in  an  action  of 
ejectment.     Waugh  v.  Richardson,  -s  Ired.,  470. 

31.  The  granting  part  of  a  grant  is  not  avoided  by  a  defect 
in  the  exception ;  but  the  exception  itself  becomes  thereby  in- 
effectual, and  the  grant  remains  in  force.     Ibid. 

'.VI.  On  a  petition  to  vacate  a  junior  grant  by  more  than  one 
person,  when  one  only  had  any  existing  title  to  the  premises, 
the  misjoinder  is  no  bar  to  a  judgment  vacating  the  grant. 
Holland  v.  Crow,  12  Ired.,  275. 

33.  The  relators  in  a  petition  to  vacate  a  grant  have  a  right 
to  the  remedy,  whether  they  prove  any  actual  damage  or  not, 
for  the  subsequent  grant  is  per  se  a  cloud  on  the  owners' title, 
and  so  a  grievance  to  them.     Ibid. 

34.  Parties  claiming  under  a  junior  grant  cannot  impeach  an 
older  one,  directly ;  and  much  less  can  they  do  it  in  a  collateral 
manner.     Ibid. 

35.  A  grant,  founded  on  an  entry,  made  on  land  subject  to 
entry,  cannot  be  collaterally  impeached  foi  defects  in  the  entry, 
or  irregularity  in  any  preliminary  proceeding.  But  where  the 
law  forbids  the  entry  of  vacant  land,  in  a  particular  tract  of 
country,  a  grant  for  a  part  of  such  land  is  absolutely  void;  and 
that  may  be  shown  in  ejectment.  Stanmire  v.  Powell,  13  Ired., 
312. 

36.  A  grant  for  land  in  the  Cherokee  country,  issuing  under  a 
resolution  of  the  general  assembly,  which  authorized  it  to  be 
located  on  any  lands  in  the  State  "  subject  to  entry  by  law,"  was 
held  void;  because  the  land  in  that  country  was  prohibited  by 
the  general  law  from  being  entered.     Ibid. 

37.  A  grant  for  vacant  land,  issued  upon  the  certificate  of 
commissioners  authorized  by  law  to  act  in  the  premises,  cannot, 
in  an  action  of  ejectment,  be  impeached  for  fraud,  mistake,  or 
any  irregularity  in  the  proceeding  before  the  commissioners. 
Lovinggood  v.  Burgess,  Busb.,  407 

38.  A  grant  ob  lined  by  fraud  is  voidable,  when  the  land  is 
the  subject  of  e]  y;  but  if  it  be  not  the  subject  of  entry,  the 
grant  is  void.     McCormick  v.  Monroe,  1  Jones  13. 

93.  When  the  executive  officers  of  the  State  have  authority 


GRANT— GUARANTY.  663 

and  jurisdiction  to  issue  grants,  they  cannot  be  impeached  col- 
li!.rally;  but  it  is  otherwise  where  such  officers  have  no  author- 
ity' for  the  purpose,  or  where  having  some  authority  they  exc  ed 
it.      Uarshaw  v.  Taylor,  3  Jones,  513. 


GUARANTY. 

1.  Where  the  defendant  undertakes,  in  a  letter  to  the  plaintiff, 
that  he  will  guarantee  '-any  contract  which  F  shall  make  with 
him  for  a  vessel  and  cargo,"  and  F  makes  a  contract  for  the  same, 

but  does  not  comply  with  it.  the  defendant  becomes  pledged  to 
the  same  extent  that  F  was  bound,  as  soon  as  the  plaintiff  parts 
with  his  property.  Fi  >r  it  was  the  defendant  who  was  principally 
relied  on,  and  it  was  incumbent  on  him  to  guard  against  F's 
failure,  and  hasten  the  plaintiff,  or  provide  for  his  own  safety. 
The  guaranty  made  by  an  endorser  isa  conditional  one;  but  here 
it  is  absolute,  to  wit,  that  F  should  comply,  not  that  he  should 
to  comply,  with  his  contract.  Williams  v.  Collins,  2  Car. 
L.  R,  580,  (382.)  (Overruling  the  same  case,  as  reported  iu  2 
Murph.,  47.) 

2.  In  general,  a,  guarantee  is  not  bound  to  the  highest  possible 
degree  of  diligence ;  but  it  is  sufficient,  ii  he  resort  to  such  means 
as  are  within  his  power,  within  such  time  as  a  prudent  and  dis- 
creet man  would,  in  like  circumstances,  to  collect  his  own  debt; 
and  if,  in  using  such  diligence,  lie  fail  to  obtain  satisfaction  of 
the  principal,  lie  is  entitled  to  resort  to  the  guarantor.  Tonus 
v.  Farrar,  2  Hawks,  163. 

3.  A,  being  indebted  to  B,  assigned  to  him  certain  judgments 
against  0,  on  which  execution  was  stayed  by  D,  and  A  guaran- 
teed the  payment  of  the  judgments  to  B;  before  the  stay  of  exe- 
cution had  expired,  0  removed  from  the  State,  and  had,  at  the 
time  of  the  trial,  sufficient  property  out  of  the  State  to  satisfy  the 
judgment,  but  D,  the  surety  for  the  stay,  was  insolvent;  held 
that  B  was  not  bound  to  pursue  0  out  of  the  State,  before  he 
could  have  recourse  to  A  on  his  guaranty.     Ibid. 

4.  In  articles  for  the  purchase  of  land,  whereby  the  purchaser 
covenanted  that  he  would  pay  in  notes  "  such  as  he  would  be 

nsiblu  for,"  the  covenant  binds  him  as  a  guarantor.      Word 
v.  Ely,  1  Dev.,  372. 

5.  What  is  due  diligence  is  a  epiestion  of  law,  and  where  a 
guarantor  was  bound,  after  a  due  course  of  law  against  the  prin- 
cipal creditor,  a  neglect  to  enter  a  judgment  against  bail,  after 
two  nihils,  discharges  him.     Battle  v.  Little,  1  Dev.,  381. 

6.  Goods  were  sold  to  be  paid  for  in  notes,  the  vendee  agreeing 


G64  "GUARANTY. 

to  take  back  the  notes,  if  not  good,  held  that  the  insolvency  of 
the  makers  authorized  the  vendor  to  return1. them  immediately, 
and  that  upon  a  tender  and  refusal,  he  was  remitted  to  his  con- 
tract for  goods  sold.     Bell  v.  Ballance,  1  Dev.  391. 

7.  A  general  letter  of  credit,  addressed  to  no  particular  indi- 
vidual, is  not  a  guaranty,  but  a  proposal  for  one,  and  notice  of 
an  advance  on  the  faith  of  it  must  be  given  to  the  writer.  SheW- 
■ell  v.  Knox,  1  Dev.,  404. 

8.  What  degree  of  diligence  a  creditor  must  use  to  bind  a 
guarantor  qwere.  But  loss  from  neglect  on  his  part  isa  matter 
ot  defence  tor  the  guarantor,  and  if  not  shown  by  him  on  the  trial, 
a  new  trial  will  not  be  granted,  simply  because  indulgence  has 
been  shown  to  the  principal  debtor.     Ibid. 

It.  Where  a  purchaser  of  goods  transfers  without  endorsement 
a  note  in  payment,  he  thereby  guarantees  that  the  sum  expressed 
in  the  note  is  due,  and  constitutes  the  vendor  his  agent  to  sue 
for  the  same  in  his. name,  and  if  suits  be  fairly  brought  and  duly 
prosecuted,  and  a  set  off  is  established  bythe  maker,  the  vendor 
may  resort  to  the  purchaser  for  the'  price  of  tiie  goods  sold. 
Jours  v.  Teargain,  1  Dev.,  420. 

10.  An  accountable  receipt  for  a  judgment  under  seal,  which 
vests  tic  equitable  title  in  one  receiver,  in  law  only  binds  him  to 
pay  what  he  receives  on  it.     Bird  v.  Ross,  1  Dev.,  172. 

11.  Upon  such  an  assignment,  if  the  assignee  u'ive  the  full 
value  and  has  no  day  of  payment,  without  an  agreement  to  the 
contrary,  the  assignor  guarantees  that  the  judgment  can  be  col- 
lected; but  if  less  than  the  amount  be  given,  oraday  of  payment 
hail,  the  assignor  only  guantees  the  existence  of  the  judgment. 
Ibid. 

12.  Where  the  liability  sf  a  party  is  not  direct,  but  collateral 
ami  dependent  upon  the  default  of  another,  he  must  be  notified 
of  the  default  before  he  tan  be  sued.     Grire  v.  Ricks,  3  Dev.,  62. 

13.  A  guarantor  is  entitled  to  notice,  although  to  charge  him 
the  same  strictness  is  not  required  as  in  the  case  of  an  endorser. 
Ibid. 

14.  A  guaranty  of  "a  note  and  judgment  against  A  and  B'" 
is  satisfied  by  a  joint  note  of  both,  upon  which  judgment  has 
been  entered  against  one  only.     Smith  v.  Morgan,  3  Dev.,  511. 

l.'i.  An  undertaking  by  the  guarantor  to  assist  in  the  collec- 
tion of  a  debt  he  is  bound  for,  does  not  justify  laches  in  the 
party  guaranteed.     Ibid. 

lli.  An  assignment,  for  value,  by  endorsement  of  a  constable's 
receipt,  amounts  but  to  a  guaranty,  and  the  guarantee  cannot 
recover  of  his  guarantor,  without  showing  that  he  has  used 
proper  diligence  in  endeavoring  to  collect  the  claim  mentioned 
in  the  receipt,  either  from  the  person  from  whom  it  is  owing,  or 
from  the  constable  who  received  it  for  collection.  Eason  v. 
Dixon,  2  Dev.  and  Bat.,  78. 


GUARANTY.  665 

17.  Where  the  plaintiff  received  notes  in  discharge  of  one 
which  he  had  against  the  defendant,  and  the  latter  refused  to 
endorse  them,  but  promised  to  pay  them  if  the  plaintiff  should 
fail  to  collect  them,  it  was  held  that  the  promise  was  a  guaranty 
of  the  notes,  and  that  an  action  upon  the  promise  was  not 
within  the  jurisdiction  of  a  single  justice.  Adeock  v.  Fleming, 
2  Dev.  and  Bat,  470. 

18.  Where  a  purchaser  of  property,  in  payment  therefor, 
transferred  to  the  vendor  notes  upon  third  persons,  and  upon 
being  requested  to  endorse  the  notes  for  the  purpose  of  enabling 
the  vendor  to  sue  in  his  own  name,  refused  to  do  so,  but  said 
"they  were  good,"  it'Was  held  that  these  words,  used  as  they 
were,  did  not  furnish  any  evidence  of  a  promise  to  make  the 
notes  good.     Carpenter  v.    Wall,  4  Dev.  and  Bat.,  144. 

1 '.».  A  guaranty  is  a  promise  to  answer  ft  ir  the  payment  of  some 
debt,  or  the  performance  of  some  duty,  in  case  of  the  failure  of 
another  person,  who  is  himself,  in  the  first  instance,  liable  to  such 
payment  or  performance.     Ibid. 

20.  Where  a  single  bill  was  executed  by  a  principal  and  sure- 
ty, and  afterwards  another  person,  at  the  instance  of  the  holder, 
but  without  the  knowledge  and  assent  of  the  makers,  guaranteed 
the  bond  by  endorsing  upon  it  "this  isa  good  bond."  and  signed 
his  name,  it  was  held  that  he  could  not,  upon  being  compelled 
to  pay  the  bond,  recover  from  the  surety  as  for  money  paid  to 
his  use.  because  he  was  not  a  regular  endorser,  and  having  be- 
come a  guarantor  without  any  express  request  from  the  makers, 
the  law  would  not  imply  a  request,  and  the  payment  of  the  bond 
under  compulsion  was  of  his  own  seeking.  Carter  v.  Black,  4 
Dev.  and  Bat,,  425. 

21.  In  the  case  of  an  indemnity  for  becoming  bail,  the  cause 
of  action  does  not  accrue  until  the  bail  is  compelled  to  pay  the 
money  and  docs  actually  pay  it,  Reynolds  v.  Magness,  2 
Ired.,  20. 

22.  Before  suit  is  brought  on  a  contract  of  indemnity,  notice 
of  the  loss  should  be  given  to  the  party  indemnifying.     Ibid. 

23.  On  a  guaranty  of  a  bond,  the  condition  of  which  was  that 
the  obligor  should,  at  a  certain  time,  pay  a  certain  sum  of  mon- 
ey "  on  receiving  from  the  obligee  a  title  "  to  certain  land,  the 
plaintiff  cannot  recover  without  showing  a  tender  of  a  deed  for 
the  land  to  the  obligor.  But  it  is  not  necessary  to  show  a  de- 
mand on  the  obligors  for  the  money.  Gardner  v.  Kim/,  2  Ired., 
297. 

24.  In  an  action  for  a  breach  of  an  agreement,  which  is  in  the 
nature  of  a  guaranty,  if  the  circumstance,  which  is  alleged  as  the 
foundation  of  the  defendant's  liability,  is  more  properly  within 
the  knowledge  and  privity  of  the  plaintiff  than  of  the  defendant, 
then  notice  thereof  should  be  averred  in  tire  declaration  and 
proved  on  the  trial.     But  where  it  does  not  lie  more  properly 


(56  GUARANTY. 

within  the  knowledge  of  one  of  the  parties  than  the  other,  notice 
is  not  requisite.     Lewis  v.  Bradley,  2  Wed.,  803. 

25.  A,  on  the  21st  of  August,  1841,  transferred  to  B  cer- 
tain promissory  notes,  which  he  guarante  d.  B  matte  no  ap- 
plication to  the  maker  of  the  notes  for  pi;,  ment  until  the  29th 
July,  1842,  and  gave  no  notice  to  A  that  the  notes  were  unpaid, 
and  that  he  should  hold  him  responsible  on  his  guaranty,  until 
the  29th  of  February,  1844;  it  teas  held  that  B  had  been  guilty  of 
such  laches  as  to  discharge  A  from  his  guaranty.      Seeker  v. 

i  i  :    ders,  6  [red,  380. 

26.  A  covenant  was  executed  by  B  and  C,  reciting  that 
whereas  A  had  lent  to  P  $1,600,  and  D  was  desirous  ofsecuring 
the  same,  they,  B  and  C,  bound  themselves  to  A,  that  if  D  did  not 
pay  the  debt  before  a  certain  time,  they  would  pay  it  at  that  time, 
and  waive  notice.  This  was  held  not  to  be  a  mere  guaranty,  but 
an  absolute  promise  to  pay  the  money,  if  D  did  not  pay  it  at  the 
time  stipulated,  and  that  no  notice  was  necessary.  Williams  v. 
Springs,  7  Ired.,  384. 

27.  In  an  action  upon  guaranty  in  the  following  words,  "This 
is  to  certify  that  I  pass  over  the  following  notes  to  S.  A.  for  value 
received,  and  I  agree  to  make  them  good,  should  any  of  them 
not  be  so ;"  and  it  was  held  that  this  was  a  guaranty,  not  only 
that  the  notes  were  good  at  the  time  they  were  passed,  but  that 
they  would  be  good  when  payment  should  be  required  in  a  rea- 
sonable time.     Ashford  v.  Robinson,  8  Ired.,  14. 

28.  Notwithstanding  gross  negligence  in  a  holder,  a  guaranty 
will  be  continued  or  revived  by  a  new  promise,  made  with  a  full 
knowledge  of  the  facts.     Ibid. 

29.  The  contract  of  guaranty  is  not  like  that  of  endorsement, 
in  the  strictness  of  the  conditions  to  be  observed,  or  in  the  con- 
sequence of  their  non-observance.  A  guarantor  is  not  discharged 
simply  by  the  negligence  of  the  other  party,  but  he  must  also 
show  a  loss  by  it;  if  a  particular  loss,  he  is  exonerated  pro  tanto; 
if  no  loss,  he  remains  liable  for  the  whole  debt.     Ibid. 

30.  On  the  guaranty  of  a  note,  the  guarantee  is  not  bound  to 
show  that  he  has  made  a  demand  on  the  maker,  but  the  guaran- 
tor is  only  discharged  when  it  appears  that  he  has  suffered  loss 
in  consequence  of  the  guarantee  not  using  due  diligence.  Far- 
row v.  Bespess,  11  Ired.,  170. 

31.  Where  one  agreed  to  guarantee  to  the  owner  of  a  slave 
$100,  if  lie  should  runaway  upon  having  handcuffs  removed, 
which  being  done,  and  the  slave  having  run  away,  it  was  held 
that  the  owner  could  not  recover,  unless  he  had  first  given  no- 
tice to  the  guarantor  of  the  escape  of  the  slave.  Weatherly  v. 
Miller,  2  Jones,  166. 

32.  A  guaranty  given  at  the  time  of  a  contract  between  two  or 
or  more  persons,  is  binding  upon  the  guarantor,  because  it  is  foun- 
ded upon  the  consideration  expressed  betweeu  the  principal  par- 


GUAKANTY.— GUARDIAN  AND  WARD— 1 


G67 


ties ;  but  if  it  be  made  afterwards,  without  any  new  consideration,  it; 

is  not  obligatory;  and  the  putting  it  in  writing  (not  under  seal) 

will  not  help  it.     Such  new  consideration,  ii  there  lie  one,  need 

!  expressed  in  the  writing,  but   may   be  proved  by  parol. 

v.  Thornton,  -4  Jones,  230. 

33.  I  -,i ven  to  a  guarantor,  that  he  is  looked  to  for 
the  debt  guaranteed,  must  be  positive  and  unconditional.  Spen- 
ar  v.  Carter,  4  -Tones,  287. 

34.  Where  it  is  certain  that  early  notice  to  a  guarantor,  of  the 
failure  to  pay  by  the  person  whose  debt  he  has  guaranteed, 
could  not  have  been  of  any  benefit   t  >   him,  the  v 

early  notice  will  not  impair  the  guarantor's   obligation. 
iring  Company  v.  Brower,  i  Jones,  429. 

35.  Where  a  contract  binds  a  party  collaterally,  to  answer  for 
the  default  of  another,  as  in  the  case  of  guaranties  and  the  like, 
notice  must  be  given  of  such  default  before  an  action  can  be 
maintained  for  a  breach  of  the  contract.  Cox  v.  Brown,  G  Jones, 
100. 

36.  It  is  a  rule  of  law  that  a  person,  who  is  liable  in  the  event 
that  another  does  not  pay,  is  entitled  to  notice  of  the  default  of 
the  primary  debtor,  before  suit  can  be  brought  against  him,  and 
it  is  no  exception  to  the  rule  that  the  primary  debtor  was  insolvent 
at  the  date  of  the  original  transaction,  or  became  so  afterwards. 
Reynolds  v.  Edney,  8  Jones,  40(5. 

See  (Evidence — Parol  evidence,  when  admissible  39.) 


GUARDIAN  AND  WARD. 


I.  Of  the  appointment  of  guardians. 

II.  Of  the  powers  and  duties  of  guardians. 

III.  Of   the  liability  of   guardians  and 

their  sureties. 


IV.  Of  the  liabilities  of  justices  for 
taking  insufficient  security  on 
the  appointment  of  guardians. 


I.       OF    THE    AIT0IXT2IENT    OF    GUARDIANS. 


1.  Guardianship  in  socage  has  not  been  recognized  in  this 
State.  Under  the  act  of  17(52,  (Rev.  Code,  ch.  54,  sec.  2,)  the 
court  may  exercise  a  discretionary  power  in  the  appointment  of 
a  guardian,  having  alwavs  a  due  regard  to  the  interest  of  the 
ward.     Mills  v  McAWster,  1  Hay.,  303,  (350.) 

2.  The  county  court,  in  appointing  a  guardian,  need  not  regard 
the  choice  of  the  minor,  but  ought  to  appoint  the  person,  who,  in 
their  discretion,  will  best  perforin  the  duty.     Wynne  v.  Always, 


6G8  GUARDIAN  AND  WARD— I.-II. 

1  Murph.,  38.     S.  C,  2  Hay.,  336,  (512,)  and  Conf.   Rep.,   554, 
(574.)     S.  P.  Grant  v.  Whitaker,  1  Murph.,  231. 

3.  The  choosing  by  an  orphan  of  a  guardian,  in  court,  does  not 
necessarily  destroy  the  authority  of  a  former  guardian ;  but  the 
court  can,  at  any  time,  remove  a  guardian  upon  proper  cause 
shown,  and  in  the  appointment  of  a  successor  has  entire  dis- 
cretion.    Bray  v.  Brumsey,  1  Murph.,  227. 

4.  No  one  lias  a  right  to  the  guardianship  of  an  infant,  except 
he  be  appointed  by  the  father  by  will  or  deed,  or  by  the  county 
or  superior  court.  An  appointment  by  the  court  is  a  matter  of 
sound  discretion,  and  when  made,  will  not  be  rescinded  by  an- 
other court,  unless  it  is  perceived  that  injury  is  likely  to  result 
from  it  to  the  person  or  estate  of  the  infant.  Long  v.  Rhymes,  2 
Murph,,  122. 

5.  Where  a  guardian  to  an  infant,  appointed  by  a  county  court 
in  tin's  state,  removes  to  another  stale,  taking  with  him  a  part  of 
the  property  of  the  infant,  the  court,  which  made  the  appoint- 
ment, has  the  right  to  remove  him  without  notice,  and  appoint 
another  in  his  place      Cooke  v.  Beak,  II  Ired.,  36 

(I.  .V  record  stating  that  "A  was  appointed  guardian  to  B, 
upon  entering  into  bond  with  C  and  D  as  sureties,"  is  an  abso- 
lute and  not  a  conditional  appointment  of  A  as  guardian  to  B, 
although  no  person  but  A  executes  the  bond.     Davis  v.  Lanier, 

2  Jones,  307. 

II.       OP    THE    POWERS    AND    DUTIES     OF   GUARDIANS. 

1.  A  guardian  appointed  by  a  court  of  chancery  may,  by  ord<  ir 
of  the  court,  rightfully  sell  the  personal  property  of  hie  ward: 
and  the  act  of  17(12  confers  the  same  powers  on  the  county  courts 
of  this  state.  Harrison  v.  Richardson.  -.1  I  >ev.,  279.  (See  Rev. 
Code,  ch  54.) 

2.  A.  guardian  cannot  purchase  his  ward's  property  of  himself. 
because  the  law  requires  that  there  should  be  two  persons  at 
least  to  make  a  contract.  But  if  another  person  purchases  at  the 
guardian's  sale  fori  the  guardian's  benefit,  but  takes  a  convey- 
ance to  himself,  and  afterwards  conveys  to  the  guardian,  the 
purchase  will  not  be  void  at  law.  And  even  in  equity  such  sales 
are  not,  ipso  .jure,  void;  but  the  trustee  purchases,  subject  to  the 
equity  of  having  the  sale  set  aside,  if  the  cestui  que  trust,  in  a 
reasonable  time,  chooses  to  say  that  he  is  not  satisfied  with  it. 
Hoskins  v.  Wilson,  4  Dev.  and  Bat.,  243. 

3.  The  county  court,  in  proceeding  under  the  act  of  1781),  au- 
thoi-izing  an  order  to  issue  to  a  guardian  empowering-  him  to  sell 
the  property  of  his  ward,  for  payment  of  the  debts  of  the  ward, 
must  first  ascertain  that  there  are  debts  due  by  the  ward, 
which  render  the  sale  of  the  property  expedient;  and  the  court 
must  also  select  the  part  or  parts  of  his  property,  which  can  be 


GUARDIAN  AND  WARD.— II.-III.  069 

disposed  of  with  least  injury  to  the  ward.  Therefore,  an  order 
of  the  county  court,  in  the  following,  words',  "ordered  that  A. 
W.  (the  guardian)  have  leave'  to  sell  as  much  of  the  lands  be- 
longing to  the  orphans  of  Stephen  Mullen,  deceased,  as  will  sat- 
isfy the  debts  against  the  said  deceased's  estate."  is  unauthorized 
by  law  and  void ;  and  a  purchaser,  under  a  sale  made  by  the 
guardian  in  pursuance  of  such  order,  acquires  no  title.  Leary 
v.  Fletcher,  1  Ired..  259.     (See  Rev.  Code.  eh.  54,  see.  34.) 

4.  Where  a  guardian  of  an  infant  sells  his  ward's  lands,  un- 
der an  order  of  tin-  county  court,  tor  the  payment  of  the  debts 
of  the  ancestor,  he  is  bound  to  observe  the  same  priority  in  the 
payment  of  such  debts,  as  an  executor  in  applying  the  personal 
assets.     Marchdnt  v.  Sanderlin,  3  Ired.,  501. 

5.  A  guardian  ran  only  hire  out  the  slave  of  his  ward  until 
the  latter  comes  of  age;  and,  upon  coming  of  age,  lie  has  the 
right  to  take  the  slave  out  of  the  possession  of  the  person  who 
has  hired  him  from  the  guardian  for  a  longer  period.  Melton  v. 
_l/r A'(  sson,  13  Ired..  475. 

See  (Heirs,  ;U-;HJ-4tM4-42-44-45-4C;.)  (Idiots  and  Luna- 
tics, 7.) 

III.       OF    THE    LIABILITY  OF    GUARDIANS    ASTJ    THEIR    SURETIES. 

1.  A  guardian  bond,  made  payable  to  "the  justices  of  Caswell 
county  court,"  will  not  support  a  suit  in  the  name  of  the  "jus- 
tices of  Caswell  county  court,"  as  they  are  not,  as  such,  a  corpo- 
ration. The  Justices  of  Caswell  County  Court  v.  Buchanan,  2 
Murph.,  40. 

-1.  flie  act  of  17(i2  directed  guardian  bonds  to  be  made  pay- 
able "  to  the  justice  or  justices  present  in  court,  and  granting 
such  guardianship,  the  survivors  or  survivor  of  them,  their  exec- 
utors oi  administrators,  in  trust,"  &c.  Ibid.  (The  bonds  are 
now  to  be  made  payable  to  the  "state  of  North  Carolina."  See 
Rev.  Code,  eh.  54,  sec.  5.) 

3.  Under  the  act  of  1795,  it  is  .the  duty  of  an  infant,  upon 
coming  to  full  age,  not  only  "to  call  on  his  guardian  for  a  full 
settlement,"  but  tu  have  a  final  adjustment  of  all  accounts,  mat- 
ters and  things,  within  three  years,  and  either  sue  for  any  bal- 
ance which  may  be  due  him,  or  to  notify  the  sureties  to  the 
guardian  bond  of  the  situation,  in  which  he  stands  to  his  guar- 
dian: and  without  such  a  course  on  the  part  of  the  infant,  the 
sureties  will  be  discharged.     Jolmson   v.   Taylor,  1  Hawks.,  271. 

4.  The  county  court  has  the  same  power  as  a  court  of  equity 
to  rectify  mistakes  in  the  settlement  of  a  guardian's  account. 
WeM  v.  KittreU,  1  Hawks.,  493. 

5.  Where  a  guardian  married  the  executrix  of  a  will,  in  which 
was  a  bequest  of  a  vested  interest  in  slaves  to  his  wards,  which 
.slaves  were  in  the  possession  of  the  executrix,  it  was  held  that,. 


G70  GUARDIAN  AND  WARD.— III. 

having  removed  from  the  state  with  the  slaves,  lie  held  them  as 
guardian,  and  not  as  executor  in  right  of  his  wife.  Clancy  v. 
Dickey,  2  Hawks.,  497. 

6.  No  county  attorney's  fee  is  to  he  taxed  on  a  sci.  fa.  issued 
to  a  guardian  under  the  act  of  1820.  Randolph  C'oun>>/  Court  v. 
Johnson,  3  Hawks.,  238. 

7.  Under  the  art  of  1816,  bonds  payable  to  a  guardian  do  not 
bear  compound  interest  after  the  ward  arrives  at  lull  age.  Wood 
v.  Brownrigg,  3  Dev.,  430.     (Sec.  Rev.  Code,  ch.  Til,  sec.  23.) 

8.  When  the  foot  that  a  guardian  was  appointed  is  admitted, 
a  presumption  arises  that  a  guardian  bond  was  given,  sin 

requisite  to  the  appointment.     Kcllo  v.  Mage?,  1 
Dev.  and  Bat,  41-1. 

9.  Where  the  sureties  of  a  guardian  obtain,  under  the  art  of 
1762,  an  order  for  counter  security,  and  at  that  time  the  guar- 
dian owes  his  ward,  and  never  afterwards  returns  an  aoco nor 

makes  a  payment,  no  presumption  of  satisfaction  at  that,  or  any 

, irises  from  his  beingjthen  able  to  pay  tht  suin 

d;  and  the    sureties   on  the  first    bond  are  liable    for  it. 

althoug]  r  for  counter  security  expressly  releases  them. 

ell,  1   Dev.  and   Bat.,  475.     (See  Rev.   Code,  ch.  54, 

sec.  3">. ) 

10.  The  condition  contained  in  a  guardian  bond,  that  the 
guardian  shall  improve  the  esl  ite  of  his  wards  "until  they  shall 
arrive  at  full  age,  or  be  sooner  thereto  required,  and  lh-:n  render  a 
true  and  faithful  account  of  his  said  guardianship,  &c,  and  de- 
liver up,  pay  to  and  possess"  his  said  wards  of  their  estate,  is 
not  broken  by  a  guardian  who  is  removed  from  his  office,  until 
an  account  and  settlem  ini  be  d<  manded  of  him,  and  he  refuse  to 
comply  with  such  requisition,  or  there  be  such  conduct  on  his 
part,  tantamount  to  a  refusal,  as  to  render  a  requisite 

eary  or  impracticable.     Barretv.   I      roe,  4  Dev.  and  Bat.,  194. 

11.  Where,  in  a  suit  on  a  guardian  bond,  it  appeared  that  tin 
neeount  betwei  a  the  guardian  and  his  ward  !  ■tiled, 
'  nd  that  tii'  !  ave  his  own  individual  bond  to  the  ward, 
which  was  receive.!  by  the  latter  in  satisfaction  of  the  balance 
due,  and  he  then  gave  his  guardian  a  receipt;  d  that 
this  was  a  sufficient  defence  to  the  action.     State  v.  G 

Ired.,  179. 

12.  The  viio  defence,  which  might  be  made  to  an  action  at 
jaw  or  suit  in  equity,  brought  in  the  name  of  the  ward  himself 
against  his  g  lardian,  is  good  in  an  action  brought  on  the  guar- 

13.  In  construing  a  bond,  all  useless  and  unmeaning  words 
ate  to  be  rejected,  provided  enough  remains  to  make  the  bond 
sensible.  Thus,  where  a  bond,  purporting  to  be.  a  guardian 
bond,  was  made  to  J.  J.,  governor,  &c,  justices  of  the  court  of 
pleas  and  quarter  sessions,  &C,  in  the  sum  of,  &c,  to  be  paid  to 


GUARDIAN  AND  WARD.— III.  G71 

the  said  justices  or  the  survivor  of  them;"  the  words  "justices 
of  the  court"  &c.,  "to  he  paid  to  the  said  justices,"  &c,  are  to 
be  rejected  as  unmeaning,  and  the  bond  is  payable  to  J.  J.  Iredell 
v.  Barhr.  9  I  red..  250. 

14.  Where  a  court  has  no  power  to  appoint  a  guardian  but 
does  appoint  him,  and  he  gives  bond  'with  sureties  and  takes 
possession  o1  the  estate  of  the  ward,  it  is  not  competent  for  any 
of  the  obligors  in  such  bend  to  object  to  its  validity,  on  the 
ground  of  want  of  power  in  the  court  to  make  the  appointment. 
Ibid. 

15.  An  inf  entitled  to  a  sum  of  money  arising 

the  sale  of  a  tract  of  land,  sold  under  the  decree  of  a  court  of 

equity,  and  th  ■  b:     i  ig  I received  by  her  guard! 

conveyed  it  in   contemplation    other  marriage  to  a   trusl 
trust  to  her  e,and  if  she  died,  without  leaving  achild, 

teu  i!  '    a  married  and  died  und 

and  without  a  child;  and  it  was  held  that  in  a  court  of  law,  at 
least,  her  personal  •  ntative  was  entitled   to   re  over  the 

money  so  rei  ler  guardian.    State  v.  S  t  9  lred., 

358. 

1(5.   In  charging  a  guardian,  the   mode  of  compounding  is  to 

make  annual  i  m   :  ing  the  aggregate  of  the  princip;  land 

interest  due  at  the  end  of  a  particular  year  a  capital  sum,    bear- 

per  cent,  i  <■■■  rest,  thence  forward  for  another,  and  so  on. 

i  ists  from  year  to  3  ear.     But  if  a  sum  be  found  due  at  the 

last  rest  day  during  the     uardian  [tip,  that  sum  bein 

into  capital  is  entitled  to  draw  interest  thereafter,  until 
it  shall   be    p  that    is  but  simple  interest,  there   being 

■.     Ford  v.   >  I  [red.,  227. 

17.  .'■  at  liberty  to  consider  the  amount  ex- 
1  on  infants  i  r  guardian,  even  for  board,  if  it  ex- 
ceed their  income,  as  a  d  d's  estate,  an 

able  out  of  the  principal.     State  v.  Cook,  \2  [red.,  67. 

18.  A  guardian  is  presumed  to  furnish  all  necessaries  I 
infant  nger  who  furnishes  them,  except  under 
pec  care   to   contract   with  the 

n  i  the  provision  tl  I  ball  not,  in 

if  their  ward-,  would  be 
vain  . 

19.  th  his  ward  after  his  arrival  at  full 
1      ith    surety  for  the   sum   found  due. 

name  of  the  surety  from  the 
bond,  and  for  this  i  v     ure  the  bond,  in  a  trial  again       the 
dian.  was  held  to  be  void.     The  ward  then  sued  on 
bond,  to  recover  the  amount  for  which  the  fir.-  ond  had 

Been  taken,  and  also  on  accounl  oi  a  mistake  in  the  settlement; 
and  it  \  bat,  whether  he  could  recover  for  the  mistake  or 


G72      GUARDIAN-  AND  WARD— HABEAS  CORPUS. 

not,  he  certainly  could  not  recover  ■  on  the  other  ground.  Ltd- 
fordv-.  Vandyke,  Busb.,480. 

2l):  Where  a  guardian  hired  out  the  slave  of  his  ward  at  pub- 
lic vendue,  proclaiming  as  conditions  of  the  hiring,  that  the  slave 
was  not  to  be  carried  beyond  the  limits-of  the  county,  nor  work 
in  a  stave  swamp,  it  ivas  held  that  the  guardian  who  had  him- 
self hired  the  slave  through  an  agent,- was  bound,  by  the  restric- 
tions thus  proclaimed,. and  that 'as  the  slave  had  been  carried  by 
him  out  of  the  county,  and  put  to  work  in  a  stave  swamp  where 
he  was  accidentally  killed  while  working  at  the  business,  the 
guardian  was  liable,  at  the  election  of  the  ward,  on  his  official 
bond  for  the  loss;  and  that  a  receipt  by  the  ward,  forthe  stipula- 
ted hire,  was  no  bar  to  his  claim  for  the  loss  of  the  slave.  Hur- 
rell  v.  Lee,  6  Jones,  280. 

21.  A  guardian,  who  calls  in  a  physician  to  the  slave  of  his 
ward,  is  liable  for  the  bill,  although  the  physician  may  bow  at 
the  time  that  the  slave  is  the  property  of  the  ward  Fessi  nden 
v.  Jones,  7  Jones,  14. 

See  (Bailment,  17.)  (Practice — Of  the  tiial  and  its  incidents, 
10. )     (Release  6.) 

IV.       OT  THE  LIABILITY  OF  JUSTICES  FOR  TAKINC!    INSUFFICIENT    SECURITY  ON 
THE  APFOINTMENT  OF  GUARDIANS. 

1.  If,  upon  the  appointment  of  a  guardian,  the  justices  on  the 
bench  take  a  bond  from  the  guardian  without  any  security 
thereto,  they  will  be  liable  for  any  damage  resulting  therefrom, 
and  one  of  the  justices  may  be  sued  alone  for  such  default.  Da- 
vis v.  Lanier,  2  Jones,  307.     (See  Rev.  Code,  ch.  54,  sec.  2.) 

2.  The-  measure  of  damages,  in  such  a  caseT  is  the  amount  of 
the  principal  and  compound  interest  thereon  up  to  the  time  of 
the  ward's  arrival  at  full  age,  but  nothing  can  be  allowed  as 
damages  fur  the  interest  accruing  after  that  time.     Ibid. 


END  OF  VOLUME  I. 


ERRATA    TO    Vol.    I. 


"    93, 

"  119.  line  11  from  bottom,  for  Hides  read  Hawk}. 

■'  121,  line  3  from  top,  for  liberality  read  liability. 

•'  182,  line  5  from  top,  for  was  such  read  was  not  such. 
"  133,  line  11  from  bottom,  for  implanted  read  inipeaclud 

147.  line  10  from  bottom,  for  Iter.,  read  Hay. 
•■  ITS.  line  3  from  top,  insert  "  2"  after  "  Crnmpler." 
■'  ISO,  line  15  from  top,  for  "10  Ired."  read  "  11  Ired." 
"  180,  line  14  from  bottom,  for  "  Jones'   rend  "  1  Jones." 
"  189.  line  5  from  top,  for  McDowell  v.  f'askill  read  McDonald  1     ->/' 
"  210  top  line,  insert  failed  after/o?v/W fuhu ss 
"  214,  changethe  places  of  the  16th  bud  17th  linen  from  bottom. 
"  221,  line  5  from  top,  fir  an  appeal  read  a  /talamenf. 
"  226,  line  19  from  bottom,  for  the  second  sustained  read  arrested. 
"  249,  line  16  from  bottom,  for  "  137'   read  173. 
•'  252,  line  7  from  top,  for  enrolments  read  emoluments. 
"  262,  line  20  from  bottom,  strike  out  the  work  bank. 

-  277.  line  15  from  bottom,  for  account  read   a  count 

■  319,  line  25  from  bottom,  insert  a  after  devastavit. 
1  354,  line  9  from  bottom,  for  Tnrrell  read  Harrell. 

"  363,  line  3  from  top,  for"5  Ired."  read  "  4  Ired." 
"  373.  line  10  from  bottom,  for  Murpb.,  read  3  Murph. 
3vj.  ii,„.  is  from  bottom,  for  "(479)"  read  "(463.)" 
384,  I     i    16  from  top.  for  "4  fin/.."  read  "1  Hoi/." 

84,    i  i.   2  t. bottom,  for  "16(262)"  read  "T6(24Z>" 

392,  Linell  from  top,  strike  out  not. 

-  397,  line  9  from  top,  for  oread  on. 

■  398,  line  12  from  top,  for  come  read  common. 

402,  lino  12  from  bottom,  for  "Jones"  read  "  1  Jones  ' 
"  4(17,  line  14  from  bottom,  read  adjusted  for  ad,„d,,,.l 
"  423,  line  1".  Horn  bottom,  for  Hayu-uodri-.nl  Kayicood. 
"  424.  line  IS  fn>m  bottom,  for  Woodd     re  "i  Waddell 

■  ..  '■       el!    pom  '"p.  for  •  5  Jones'   read    'i  ■'■  - 
4.-:-.  ' :■  tr.  m:  bottom,  for  ■•:)  ]<. »."  read  --J  n,c" 

"  453,  line  13  from  bottom,  for  •'  Ired.."  read  "10  Ired." 
"  467,  line  16  from  bottom,  for  contracts  read  contents 

-  468  line  15  from  top,  for  JTaytoood  read  Kaywood 
"  471    line  20  from  top.  strike  out  the  third  the. 

4Sn,  line  5  from  bottom,  for  as  read  acts. 
•'  496,  line  21  from  bottom, for  •  3  Ired."  lead  "  2  Ired  " 
"  496.  line  I8frombottom    for  Hicks  read  Vic!.: 
"  498,  line  7   from  bottom   for  "Bust.  297,"  read  "/>'».</..  2S7 ." 
"  5114.  line  17  from  bottom,  for  Beat  rend  Bell 
■    506.  line  7  from  top,  for  "582"  read  "482." 
"  513,  line  3  from  top.  for  "  So"  read    '96." 

"  519.  line  15  from  top,  for  when  actuated  read  when  nut  actuated. 
"  621,  line  2  from  bottom,  for  "1  Dm   tt  Bat.."  read  "2   //.  /•.  d-  /.'a'. 
"  533,  line  in  from  top,  for  Noel  read  Hoel. 
•■  534,  line  5  from  top.  for  or  read  for. 
•'  5:34.  line  23  from  bottom,  for  "537"  read  "439." 
"  536,  line20froin  bottom,  fir  forced  read  fuund.d. 

"  545,  line  3  fnn ittom    Insert  Ibid  at  tin-  end  of  the  line. 

'  547  line  19  from  top,  for  Moure  read  Morgan. 

■  558,  line  H  from  top,  for  executive  read  execution. 

•  560  line  4  from  bottom    for  Festerman  read    Test.rniir 
"  575   line  6  from  bottom,  for  •  233"  read  223. 
"  58',  line  9  from  top,  insert  oilier  between  the  and  ex. colon 
■■■  585.  line  7  from  top,  for"(34V  read  "(341. V' 
"  624.  line  is  from  top.  for  "327"  read  "336  " 
••  640.  line  2  fiom  bottom,  for  XeKrall  read  McKeratl. 

'  >::,:,,  1  i  1 1 .  ■  9  iron,  bottom,  fur  si  rue  read  prior  to. 
"  653,  line  5  from  bottom,  for  "(41S)"  read  "(478.)" 
'    654,  line  S  from  bottom,  for  "396"  read  '  496  " 
■'  657, line  24 from  top,  for  draught  read  drought. 

1  1  from  bottom,  for  Linther  read  Souther. 
•'  601,  line  22  from  bottom,  for  "328  '  read  ••533.' 


